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State v. Morgan

ARIZONA COURT OF APPEALS DIVISION ONE
Nov 25, 2014
No. 1 CA-CR 13-0353 PRPC (Ariz. Ct. App. Nov. 25, 2014)

Opinion

No. 1 CA-CR 13-0353 PRPC

11-25-2014

STATE OF ARIZONA, Respondent, v. JAMES MICHAEL MORGAN, Petitioner.

COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent James Michael Morgan, Florence 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NOTICE: NOT FOR PUBLICATION.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. CR1989-005389
The Honorable Jeffrey A. Rueter, Judge Pro Tem

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent

James Michael Morgan, Florence
Petitioner

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie, Judge Andrew W. Gould, and Judge Samuel A. Thumma delivered the decision of the court.

PER CURIAM:

¶1 James Michael Morgan petitions for review from the dismissal of his petition for post-conviction relief. We have considered the petition for review and, for the reasons stated, grant review and deny relief.

¶2 Morgan pled guilty to three counts of attempted molestation of a child in 1989. The trial court sentenced him to eight years' imprisonment for one count and placed him on lifetime probation for the other two counts. We affirmed Morgan's convictions and sentences on direct appeal. State v. Morgan, 1 CA-CR 90-1371 (Ariz. App. Jan. 23, 1992) (mem. decision). Morgan completed his prison sentence but violated the terms of his probation, whereupon the trial court sentenced him to ten years of imprisonment for the second count. Morgan completed that sentence and again violated the terms of his probation. The trial court sentenced him to an eight year term of imprisonment as to the third count. Morgan now seeks review of the summary dismissal of a petition for post-conviction relief that is the latest in a series of successive petitions, though the first petition filed since he was sentenced to prison on the third count. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3 Morgan argues his trial counsel and first post-conviction relief counsel were ineffective. He contends the decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), constitutes a significant change in the law that allows him to raise untimely claims of ineffective assistance of counsel.

¶4 Martinez held:

Where, 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.

Martinez, 132 S.Ct. at 1320. Martinez simply stands for the proposition that Morgan can seek habeas corpus relief in federal court based on ineffective

assistance of trial counsel if he can first show either that he had no counsel in his first post-conviction relief proceeding or that counsel in the first postconviction relief proceeding was ineffective. Martinez does not require a state court to consider all untimely claims of ineffective assistance of counsel raised in post-conviction proceedings.

CONCLUSION

¶5 For the reasons stated, we grant review and deny relief.


Summaries of

State v. Morgan

ARIZONA COURT OF APPEALS DIVISION ONE
Nov 25, 2014
No. 1 CA-CR 13-0353 PRPC (Ariz. Ct. App. Nov. 25, 2014)
Case details for

State v. Morgan

Case Details

Full title:STATE OF ARIZONA, Respondent, v. JAMES MICHAEL MORGAN, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Nov 25, 2014

Citations

No. 1 CA-CR 13-0353 PRPC (Ariz. Ct. App. Nov. 25, 2014)