Opinion
No. 2 CA-CR 2017-0354-PR
03-26-2018
THE STATE OF ARIZONA, Respondent, v. JERRY JACKSON, Petitioner.
Jerry Jackson, Eloy In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20113358001
The Honorable James E. Marner, Judge
REVIEW GRANTED; RELIEF DENIED
Jerry Jackson, Eloy
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 Jerry Jackson seeks review of the trial court's orders denying his motion requesting permission to file a delayed petition for review of the denial of his petition for post-conviction relief and his subsequent motion for reconsideration. We accept review but deny relief.
¶2 After a jury trial, Jackson was convicted of armed robbery, attempted armed robbery, and three counts of aggravated assault. The trial court sentenced him to concurrent and consecutive prison terms totaling eighteen years. We affirmed his convictions and sentences on appeal. State v. Jackson, No. 2 CA-CR 2013-0289 (Ariz. App. Jun. 25, 2014) (mem. decision). In July 2014, Jackson filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no claims to raise under Rule 32, Ariz. R. Crim. P. Jackson filed a pro se petition for post-conviction relief, which the trial court denied in January 2016. The court denied his motion for reconsideration in February 2016. Jackson did not timely seek review of that ruling. See Ariz. R. Crim. P. 32.9(c)(1)(A).
¶3 In August 2017, Jackson filed a motion seeking permission to file a delayed petition for review. He asserted that he needed to file a petition for review to avoid preclusion of his claims in a federal habeas corpus proceeding, and that his post-conviction counsel had not advised him of that requirement. The trial court denied the motion, noting Jackson was not entitled to counsel in proceedings following the denial of post-conviction relief and had shown his ability to comply with timeliness requirements throughout his Rule 32 proceeding. The court denied Jackson's subsequent motion for reconsideration, and this petition for review followed.
¶4 Jackson styles his filing as a petition for review filed pursuant to Rule 32.9(c). But, Rule 32.9 is not applicable to a defendant's efforts to seek review of a motion seeking leave to file a delayed petition pursuant to Rule 32.9(c)(3). Rule 32.9(a), governing motions for rehearing, refers only
to the court's ruling on a petition for post-conviction relief. And, Rule 32.9(c), governing petitions for review, refers only to review of the denial of a petition for post-conviction relief or the denial of a motion for rehearing. The denial of a motion seeking leave to file a delayed petition fits neither category.
¶5 In our discretion, however, we may treat Jackson's petition for review as a petition seeking special action relief. See Ariz. R. P. Spec. Actions 1(a); see State v. Aguilar, 170 Ariz. 292, 295-96 (App. 1991). Because Jackson has no other means to review the trial court's ruling, we exercise that discretion and accept special action jurisdiction. But, because the court did not abuse its discretion in denying Jackson's motion below, we deny relief. See Ariz. R. P. Spec. Actions 1(a).
¶6 On review, Jackson again asserts that he should be entitled to file a delayed petition for review because appointed Rule 32 counsel did not advise him of exhaustion requirements in federal habeas claims. Although a trial court has discretion to extend the deadline for a petition for review pursuant to Rule 32.9(c)(3), a petitioner has a "heavy burden in showing the court why [his or her] non-compliance [with Rule 32.9] should be excused." State v. Pope, 130 Ariz. 253, 256 (1981).
¶7 Jackson relies primarily on Dixon v. Baker, in which the Ninth Circuit Court of Appeals determined a habeas petitioner had demonstrated "good cause" for a stay to exhaust his state remedies because he had not been represented by counsel during his state post-conviction proceedings. 847 F.3d 714, 720-21 (9th Cir. 2017). The court reasoned that an unrepresented petitioner "cannot be expected to understand the technical requirements of exhaustion and should not be denied the opportunity to exhaust a potentially meritorious claim simply because he lacked counsel." Id. at 721.
¶8 Dixon is inapplicable here. It addressed a petitioner's failure to raise substantive claims in state proceedings, not the failure to seek review of the denial of those claims. Id. at 717-18. And, even if Dixon stood for the proposition that the failure to understand federal preclusion should excuse the failure to timely seek review of a trial court's denial of post-conviction relief, Dixon is not binding on this court. See State v. Swoopes, 216 Ariz. 390, ¶ 35 (App. 2007). And, as the trial court noted, Jackson was not entitled to counsel after the trial court denied his petition for post-conviction relief. State v. Smith, 184 Ariz. 456, 459 (1996). "We hold unrepresented litigants in Arizona to the same standards as attorneys." Flynn v. Campbell, 243 Ariz. 76, ¶ 24 (2017). And Jackson does not identify
any error in the trial court's conclusion that he was capable of understanding the timeliness requirements of Rule 32. We agree with the court that Jackson has not met the "heavy burden" required to excuse his decision to forgo timely review of the denial of his petition for post-conviction relief. Pope, 130 Ariz. at 256.
¶9 We accept review but deny relief.