Opinion
2 CA-CR 2013-0117-PR
06-24-2013
THE STATE OF ARIZONA, Respondent, v. STEVE ARTHUR MARTINEZ, Petitioner.
William G. Montgomery, Maricopa County Attorney By E. Catherine Leisch Attorneys for Respondent Steve A. Martinez In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY
Cause No. CR2006176663001DT
Honorable Robert E. Miles, Judge
REVIEW GRANTED; RELIEF DENIED
William G. Montgomery, Maricopa County Attorney
By E. Catherine Leisch
Phoenix
Attorneys for Respondent
Steve A. Martinez Florence
In Propria Persona
ESPINOSA, Judge. ¶1 Petitioner Steve Martinez seeks review of the trial court's summary denial of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P., as well as the court's denial of his motion for rehearing. For the following reasons, we grant review but deny relief. ¶2 Martinez was convicted after a jury trial of second-degree burglary, kidnapping, aggravated assault, and sexual assault. The trial court found he had two historical prior felony convictions and sentenced him to a combination of concurrent and consecutive prison terms totaling 30.5 years. We affirmed Martinez's convictions and sentences on appeal. State v. Martinez, No. 1 CA-CR 08-0341, ¶ 1 (memorandum decision filed Oct. 1, 2009). ¶3 Appellate counsel then filed an untimely notice of post-conviction relief on Martinez's behalf and urged the trial court to excuse the untimely filing, "process[]" the notice, and appoint counsel. Counsel stated her own error and "ineffective assistance" to Martinez had caused the notice to be untimely, "through no fault" of his own. The court issued an order allowing the matter to proceed but expressly providing, "This allowance does not constitute any expression of opinion that defendant has met the requirements to file an untimely petition, or on the merits of any such claim, or that any claims raised in the petition are not procedurally precluded." After appointed counsel notified the court that she had reviewed the record and found no claims to raise in post-conviction relief proceedings, Martinez filed a pro se petition in which he sought a new trial in a different venue on grounds that, during his first trial, he had been "subjected to a tainted jury," "[p]rosecutorial [m]isconduct," "[j]udicial [e]rrors and [m]isconduct," and "[i]neffective [t]rial [c]ounsel." He also alleged the state had relied on an "insufficient search warrant" to obtain evidence against him. ¶4 In its ruling denying relief, the trial court found Martinez's petition "d[id] not demonstrate that trial counsel's performance fell below an objective standard of reasonableness as defined by prevailing professional norms, or that, but for counsel's actions, there is a reasonable probability that the outcome of the case would have been different." Accordingly, the court concluded Martinez failed to state "a colorable claim of ineffective assistance of counsel." See State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006) ("To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant."). Because the court found all other issues in the petition below were "matters that could have been raised on direct appeal" or by post-trial motion, it concluded Martinez "is precluded from Rule 32 relief upon such grounds." See Ariz. R. Crim. P. 32.2(a)(3) (defendant precluded from Rule 32 relief on any ground "[t]hat has been waived at trial, on appeal, or in any previous collateral proceeding"). This petition for review followed. ¶5 On review, Martinez briefly summarizes the claims he raised below, "as set forth" in his post-conviction-relief petition, without reference to the trial record. He does not address the court's ruling that his claims related to jury composition, prosecutorial misconduct, "judicial error and misconduct," and the sufficiency of a search warrant are precluded by his failure to raise them on appeal. With respect to the court's ruling that he failed to state a colorable claim that trial counsel had rendered ineffective assistance, he again refers us to his petition below and asserts he presented a "viable" claim. ¶6 "Arizona law requires that a [Rule 32] petitioner present the issues and material facts supporting a claim in a petition for review and prohibits raising an issue through incorporation of any document by reference, except for appendices." Wood v. Ryan, 693 F.3d 1104, 1117 (9th Cir. 2012), citing Ariz. R. Crim. P. 32.9(c)(1)(iv). Martinez has failed to comply with Rule 32.9, and that failure alone warrants our denial of relief on review. See State v. French, 198 Ariz. 119, ¶ 9, 7 P.3d 128, 131 (App. 2000) (summarily rejecting claims for failure to comply with Rule 32.9), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). ¶7 In addition, nothing in Martinez's petition for review persuades us the trial court abused its discretion in denying Rule 32 relief. See Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d at 67 (summary denial of post-conviction relief reviewed for an abuse of discretion). The court correctly ruled that Martinez's claim of ineffective assistance of trial counsel was the only claim not precluded by his failure to raise it on appeal. See Ariz. R. Crim. P. 32.2(a)(3). Although the court below considered whether Martinez's ineffective-assistance claim was colorable, that claim also was properly denied as precluded—not because it was omitted on appeal, but because it was raised in an untimely Rule 32 proceeding. See Ariz. R. Crim. P. 32.4(a) (untimely proceeding "may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)"). ¶8 Finally, we agree with the trial court that Martinez failed to present a colorable claim in his petition below. Assertions of counsel's alleged deficiencies and resulting prejudice were speculative and unsupported by anything other than Martinez's own opinion. The court was not required to conduct an evidentiary hearing "based on mere generalizations and unsubstantiated claims." State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (trial court properly dismissed claim of ineffective assistance based on counsel's failure to call witnesses where petitioner failed to identify witnesses or provide their affidavits containing "testimony they would have offered"). ¶9 Accordingly, although review is granted, relief is denied.
In its response to his petition for review, the state addressed the trial court's ruling that most of Martinez's claims were precluded. Martinez then filed a reply in which he argued, for the first time, that his appellate counsel had been ineffective in failing to raise these claims on appeal. We do not consider this claim of ineffective assistance of appellate counsel. See State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (appellate court will not consider on review claims not raised below); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review limited to "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review").
In filing Martinez's untimely notice of post-conviction relief, appellate counsel urged the trial court to excuse the untimely filing because it had occurred "through no fault" on Martinez's part. Notwithstanding counsel's oblique reference to Rule 32.1(f), which excuses "failure to file a notice of post-conviction relief of-right . . . within the prescribed time" when that failure "was without fault on the defendant's part," that rule only applies to "of-right" proceedings. It does not provide a non-pleading defendant like Martinez, who has already been afforded a direct appeal, relief from the preclusive effect of Rule 32.4(a). See Ariz. R. Crim. P. 32.1 (defining "of-right" proceedings).
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PHILIP G. ESPINOSA, Judge
CONCURRING: ______________
GARYE L. VÁSQUEZ, Presiding Judge
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VIRGINIA C. KELLY, Judge