Opinion
No. 1 CA-CR 16-0346 PRPC
09-14-2017
STATE OF ARIZONA, Respondent, v. BENJAMIN ARTHUR HOLLEMBEAK, Petitioner.
COUNSEL Coconino County Attorney's Office, Flagstaff By William P. Ring Counsel for Respondent Benjamin Arthur Hollembeak, Eloy Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Review from the Superior Court in Coconino County
No. S0300CR20051148
The Honorable Dan R. Slayton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Coconino County Attorney's Office, Flagstaff
By William P. Ring
Counsel for Respondent Benjamin Arthur Hollembeak, Eloy
Petitioner
MEMORANDUM DECISION
Chief Judge Samuel A. Thumma delivered the decision of the court, in which Judge Lawrence F. Winthrop and Judge James P. Beene joined. THUMMA, Chief Judge:
¶1 Petitioner Benjamin Arthur Hollembeak 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 (2017). 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 (2012). Because Hollembeak has shown no such error, this court grants review but denies relief.
Absent material revisions after the relevant dates, statutes and rules cited refer to the current version unless otherwise indicated. --------
¶2 In January 2007, a jury convicted Hollembeak of five counts of aggravated assault, Class 3 felonies; seventeen counts of aggravated assault against a police officer, Class 2 felonies; three counts of discharge of a firearm at a non-residential structure, Class 3 felonies; seventeen counts of endangerment, Class 6 felonies; and one count of criminal damage, a Class 6 felony, all committed in May 2005. In March 2007, the superior court sentenced Hollembeak to concurrent prison terms, the longest of which were 18 years on the aggravated assault against a police officer convictions. This court affirmed on direct appeal. State v. Hollembeak, 1 CA-CR 07-0284 (Ariz. App. Jan. 29, 2009) (mem. dec.).
¶3 Hollembeak filed a timely petition for post-conviction relief, alleging claims of ineffective assistance of trial counsel. The superior court summarily dismissed the petition in October 2009, finding Hollembeak failed to state a colorable claim for relief.
¶4 In November 2015, Hollembeak filed a second notice and petition for post-conviction relief, alleging claims of ineffective assistance of counsel, illegal sentence and illegally formed grand and petit juries. In March 2016, the superior court summarily dismissed the petition as untimely. Hollembeak filed a motion for rehearing, arguing he was entitled to raise his constitutional claims in a second post-conviction relief proceeding pursuant to the "Martinez exception" for procedurally defaulted claims due to ineffective assistance of post-conviction relief counsel. The court denied the motion for rehearing, and this timely petition for review followed.
¶5 Hollembeak argues the superior court erred in denying his motion for rehearing because the claims raised in his second petition for post-conviction relief are procedurally and substantively timely pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Hollembeak's reliance on Martinez, however, is misplaced.
¶6 Martinez held that a defendant who did not plead guilty may be able to obtain federal habeas corpus review of a claim that is procedurally barred if the defendant can show ineffective assistance by the first post-conviction relief counsel. 566 U.S. at 15-17. As explained in State v. Escareno-Meraz, 232 Ariz. 586, 587 ¶ 4 (App. 2013), however, Martinez does not apply to Arizona post-conviction proceedings and thus does not permit Hollembeak to overcome the time limits in Ariz. R. Crim. P. 32.4(a). Hollembeak has "no constitutional right to counsel in post-conviction proceedings," and therefore his claim of ineffective assistance of post-conviction relief counsel is not cognizable under Rule 32.1. Id.
¶7 Nor can the underlying claims Hollembeak seeks to press be raised in an untimely and successive post-conviction proceeding because they do not fall within Rule 32.1(d), (e), (f), (g) or (h). See Ariz. R. Crim. P. 32.4(a); see also State v. Shrum, 220 Ariz. 115, 118 ¶ 13 (2009) (noting "few exceptions" to "general rule of preclusion" for claims in untimely or successive petitions). Accordingly, the superior court properly summarily dismissed Hollembeak's untimely second petition for post-conviction relief and properly denied his motion for rehearing.
¶8 For these reasons, this court grants review but denies relief.