Opinion
2 CA-CR 2023-0248-PR
07-24-2024
The State of Arizona, Respondent, v. Ju'Juan Marquette Gibson, Petitioner.
Ju'Juan M. Gibson, Hutchinson, Kansas In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20094200001 The Honorable James E. Marner, Judge
Ju'Juan M. Gibson, Hutchinson, Kansas
In Propria Persona
Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
SKLAR, PRESIDING JUDGE:
¶1 Petitioner Ju'Juan Gibson seeks review of the trial court's ruling summarily dismissing his petition for writ of coram nobis, which the court treated as a petition for post-conviction relief, pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Bennett, 213 Ariz. 562, ¶ 17 (2006). Gibson has not met his burden of establishing such abuse here.
¶2 After a 2010 jury trial, Gibson was convicted of aggravated robbery and two counts each of armed robbery and aggravated assault. The trial court sentenced him to concurrent prison terms, the longest of which was 7.5 years. This court affirmed his convictions and sentences on appeal. State v. Gibson, No. 2 CA-CR 2010-0209 (Ariz. App. Apr. 1, 2011) (mem. decision). Thereafter, Gibson sought and was denied post-conviction relief; this court dismissed his petition for review as untimely. State v. Gibson, No. 2 CA-CR 2012-0068 (Ariz. App. Apr. 4, 2012) (order). In October 2012, Gibson filed a petition for writ of coram nobis, raising claims of actual innocence and ineffective assistance of counsel. The trial court treated it as a petition for post-conviction relief and dismissed it, and this court denied relief on review. State v. Gibson, No. 2 CA-CR 2012-0461 (Ariz. App. Feb. 26, 2013) (mem. decision).
¶3 In October 2023, Gibson filed the current petition for writ of coram nobis. He asserted that he is an inmate in the Kansas Department of Corrections and that his sentence in that state had been "increased" as a result of this Pima County matter. He therefore sought to challenge his Pima County convictions as "invalid," reasoning that he was actually innocent and that he had received ineffective assistance of trial, appellate, and Rule 32 counsel.
¶4 The following month, the trial court issued its ruling addressing Gibson's petition. The court treated the petition as a successive petition for post-conviction relief, pursuant to Rule 32.3(b). It first observed that Gibson's 2012 petition for writ of coram nobis was "very similar" to the current petition and, thus, incorporated its 2012 ruling as to Gibson's current claims of actual innocence and ineffective assistance of counsel. In addition, the court noted that Gibson's claim of ineffective assistance of appellate counsel was "inexcusably untimely" and that this court had affirmed Gibson's convictions on appeal, finding substantial evidence to support the jury's verdicts. See Gibson, No. 2 CA-CR 2010-0209, ¶ 2. The court further determined that Gibson's claim of ineffective assistance of Rule 32 counsel was untimely and precluded. This petition for review followed.
¶5 On review, Gibson suggests the trial court erred in concluding that his claims were "successive and untimely." However, he does not offer any meaningful argument as to how the court erred. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived on review when petitioner fails to cite relevant authority and does not develop the argument in meaningful way); Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review or cross-petition for review constitutes a waiver of appellate review of that issue."). Instead, he largely repeats the claims raised in his petition below.
To the extent Gibson raises new claims on review that were not asserted below, we do not address them. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (court of appeals does not address issues raised for first time in petition for review); see also Ariz. R. Crim. P. 32.16(c)(2)(B) (petition for review shall contain "issues the trial court decided that the defendant is presenting for appellate review").
¶6 The trial court correctly determined that to the extent Gibson raised the same claims previously and those claims were adjudicated on their merits, they are precluded in this proceeding. See Ariz. R. Crim. P. 32.2(a)(2). Any new claims of ineffective assistance of trial or appellate counsel are also precluded as waived. See Ariz. R. Crim. P. 32.2(a)(3). And because Gibson was a non-pleading defendant, his claim of ineffective assistance of Rule 32 counsel is not colorable. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013) ("Non-pleading defendants . . . have no constitutional right to counsel in post-conviction proceedings; thus, despite the existence of state rules providing counsel, a claim that Rule 32 counsel was ineffective is not a cognizable ground for relief in a subsequent Rule 32 proceeding."). Moreover, Gibson has offered no excuse for the delay in bringing these claims. See Ariz. R. Crim. P. 32.2(b), 32.4(b)(3). The court thus did not abuse its discretion in summarily dismissing Gibson's petition. See Bennett, 213 Ariz. 562, ¶ 17.
¶7 Accordingly, we grant review but deny relief.