Opinion
No. 1 CA-CR 13-0252 PRPC
09-23-2014
STATE OF ARIZONA, Respondent, v. GEORGE PHILIMON GUTIERREZ, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent George Philimon Gutierrez, Buckeye Petitioner
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Petition for Review from the Superior Court in Maricopa County
No. CR1990-013056
The Honorable Harriett E. Chavez, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent
George Philimon Gutierrez, Buckeye
Petitioner
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Andrew W. Gould joined.
THUMMA, Judge:
¶1 Petitioner George Philimon Gutierrez seeks review of the superior court's order denying his petition for post-conviction relief, filed pursuant to Arizona Rule of Criminal Procedure 32.1. Absent an abuse of discretion or error of law, this court will not disturb a superior court's ruling on a petition for post-conviction relief. State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19, 278 P.3d 1276, 1280 (2012). Finding no such error, this court grants review but denies relief.
¶2 A jury convicted Gutierrez of attempted first degree murder, burglary and kidnapping; Gutierrez was sentenced to prison terms resulting in an effective sentence of 42 years' imprisonment and his convictions and sentences were affirmed on appeal. State v. Gutierrez, 2 CA-CR 93-0188; 2 CA-CR 93-0189 PR (consolidated) (Ariz. App. Apr. 15, 1993) (mem. decision on file at Arizona Court of Appeals). Gutierrez now seeks review of the summary dismissal of his fourth successive petition for post-conviction relief. This court has jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶3 Gutierrez argues Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), constitutes a significant change in the law that allows him to raise untimely claims of ineffective assistance of counsel for counsel who represented him in his first post-conviction petition for relief. Martinez held that, "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." ___ U.S. at ___, 132 S. Ct. at 1320. Under Martinez, Gutierrez may seek habeas corpus relief in federal court based on ineffective assistance of trial counsel if he can first show either he had no counsel in his first post-conviction relief proceeding or if counsel in his first post-conviction relief proceeding was ineffective. Martinez does not, however, require a state court to consider all untimely claims of ineffective assistance of counsel raised in state post-conviction relief proceedings.
¶4 While the petition for review presents additional issues not raised in the petition for post-conviction relief filed with the superior court, a petition for review filed with this court may not present issues not first raised with the superior court. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 (App. 1991); State v. Wagstaff, 161 Ariz. 66, 71, 775 P.2d 1130, 1135 (App.
1988); State v. Ramirez, 126 Ariz. 464, 467, 616 P.2d 924, 927 (App. 1980); Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶5 For these reasons, this court grants review but denies relief.