Opinion
No. 2 CA-CR 2014-0190-PR
09-22-2014
THE STATE OF ARIZONA, Respondent, v. JOSE LEONEL PARRA-DEHARO, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20100173002
The Honorable Brenden J. Griffin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Judge Vásquez and Judge Brammer concurred. HOWARD, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Jose Parra-Deharo petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Parra-Deharo has not met his burden of demonstrating such abuse here.
¶2 After separate jury trials, Parra-Deharo was convicted of conspiracy to commit armed robbery and/or first-degree burglary and sale of a dangerous drug. He was sentenced to concurrent prison terms, the longer of which is five years. This court affirmed his convictions and sentences on appeal. State v. Parra-Deharo, No. 2 CA-CR 2012-0011, ¶ 10 (memorandum decision filed Nov. 20, 2012).
¶3 Parra-Deharo then sought post-conviction relief. His claims centered chiefly on evidence adduced in a separate criminal proceeding that the investigating officers—the same officers who had investigated Parra-Deharo—had kept out of the primary case file information about a confidential informant, they purportedly had followed that procedure in other cases, and the trial court in that proceeding had found "untruthful" one of the officer's claim that he had informed the prosecuting attorney about the procedure used to keep confidential information out of the primary case file. He argued the state had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose the information, the indictment against him should be dismissed "based on outrageous, and criminal government misconduct," and the trial court's credibility finding regarding the officer constituted newly discovered evidence. Parra-Deharo also claimed the admission at trial of statements by his codefendants violated Bruton v. United States, 391 U.S. 123 (1968), and trial counsel had been ineffective in failing to raise the argument.
¶4 The trial court summarily dismissed Parra-Deharo's petition. It determined the credibility finding in the unrelated proceeding was not newly discovered evidence because it did not exist at the time of trial and, in any event, would only serve as impeachment evidence on a collateral issue and would not have changed the verdicts or sentences. The court also rejected Parra-Deharo's claim of outrageous government conduct, noting he had provided no grounds for his claim "other than the existence of the not-credible finding and his dislike of undercover investigations using informants." In rejecting Parra-Deharo's claim based on Brady, the court stated it had reviewed the confidential informant file in camera and found it contained no Brady material. Finally, the court rejected Parra-Deharo's claim of ineffective assistance of counsel based on purported Bruton violations, concluding the codefendant's statements had been admitted properly, the jury had been instructed correctly concerning the statements, and that any error was "harmless beyond a reasonable doubt."
¶5 On review, Parra-Deharo generally restates his claims. He first asserts that, although the trial court's credibility finding occurred well after his trial, the evidence that one of the officers "was not credible" existed at the time of his trial and was "absolutely relevant" because the officer admitted he followed the same procedure in each case. The majority of factual assertions Parra-Deharo makes concerning his case and the other proceeding are unsupported by citation to the record. Rule 32.9(c)(1) requires counsel to provide "specific references to the record" in a petition for review. Nor has he identified anything suggesting the evidence had any value beyond impeachment, that the procedure used for protecting information about confidential informants was improper, or that the officer had failed to disclose information to the prosecutor as he had in the unrelated case. Evidence which would be "used solely for impeachment" is not a newly discovered material fact as defined by Rule 32.1(e) unless it "substantially undermines testimony which was of critical significance at trial." Parra-Deharo has not attempted to make this showing and, accordingly, his claim of newly discovered evidence fails.
Parra-Deharo broadly asserts he was entitled to an evidentiary hearing on his claim of newly discovered evidence. A defendant is entitled to an evidentiary hearing if his or her allegations, if true, would have changed the outcome of trial. State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995). Parra-Deharo has failed to sustain this burden.
¶6 Parra-Deharo also asserts his claim of a Brady violation was colorable, arguing the trial court's in camera review of the confidential informant file was inappropriate and that he is entitled to a hearing "to determine the relevance of the . . . file and the other information and material that might have been discovered as a result of the disclosure of the file." Brady requires the state to disclose any evidence favorable to the defense and material to the issue of guilt. 373 U.S. at 86-87; see also Ariz. R. Crim. P. 15.1(b)(8). A trial court, however, may evaluate confidential material in camera to determine what, if any, material is subject to disclosure. See State v. Lukezic, 143 Ariz. 60, 66, 691 P.2d 1088, 1094 (1984). And Parra-Deharo has cited no authority supporting his claim the trial court's in camera review was improper in these circumstances. Accordingly, we do not address this argument further. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (failure to develop argument waives claim on review).
¶7 Parra-Deharo next reurges his claim that the state's conduct in investigating him for the crimes of conviction was "outrageous," and violated his "right of due process and fundamental fairness." "'Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed.'" United States. v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008), quoting United States v. Holler, 411 F.3d 1061, 1065 (9th Cir. 2005). For example, in United States v. Twigg, the court found such conduct when "all actions taken by [the defendant]" were at the direction of a government agent and the defendant "contributed nothing in terms of expertise, money, supplies, or ideas." 588 F.2d 373, 382 (3rd Cir. 1978). But, although Parra-Deharo claims the state's conduct here was similarly outrageous, he does not develop this argument in any meaningful way nor provide citations to the record in support of his claim. Accordingly, he has waived this argument as well. Bolton, 182 Ariz. at 298, 896 P.2d at 838; see also Ariz. R. Crim. P. 32.9(c)(1) (requiring "specific references to the record").
¶8 Parra-Deharo claims, as he did below, that his trial counsel was ineffective in failing to raise various purported Bruton violations at trial. Bruton and other cases decided by the United States Supreme Court "establish that a defendant's Sixth Amendment right of confrontation requires trials to be severed if a nontestifying codefendant makes a statement that directly incriminates the moving defendant." State v. Vasquez, 233 Ariz. 302, ¶ 9, 311 P.3d 1115, 1118 (App. 2013). Parra-Deharo asserts the trial court erred in finding the statements he identified to be harmless without conducting a hearing and it "clearly had not considered each of the examples" Parra-Deharo had raised in his petition below. "To state a colorable claim of ineffective assistance of counsel," Parra-Deharo was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶9 Parra-Deharo ignores the trial court's conclusion that the statements were, in fact, admissible because they were in furtherance of a conspiracy. The court further provided an alternative basis in support of its ruling that admission of the statements, even if erroneous, was harmless. That determination does not require the conclusion, as Parra-Deharo suggests, that the court did not consider the admissibility of the statements as well.
¶10 Moreover, "[i]n addressing a claim of ineffective assistance of counsel, we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013), quoting Strickland, 466 U.S. at 689. Thus, Parra-Deharo was required to show trial counsel's decisions "were not tactical in nature" and had no reasoned basis. Id. Parra-Deharo has identified no authority or evidence suggesting counsel's conduct fell below prevailing professional norms or had no possible tactical basis. He therefore has not made a colorable claim of ineffective assistance of counsel.
¶11 Although we grant review, we deny relief.