Opinion
No. 2 CA-CR 2016-0143-PR
05-26-2016
THE STATE OF ARIZONA, Respondent, v. JESUS RONALDO RIVERA, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix Counsel for Respondent Jesus Rivera, Kingman 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2010112868001DT
The Honorable Joseph C. Welty, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Lisa Marie Martin, Deputy County Attorney, Phoenix
Counsel for Respondent
Jesus Rivera, Kingman
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred.
HOWARD, Presiding Judge:
¶1 Jesus Rivera seeks review of the trial court's order denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Rivera has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Rivera was convicted of possession of marijuana for sale and the trial court sentenced him to an 11.25-year prison term. We affirmed his conviction and sentence on appeal. State v. Rivera, No. 1 CA-CR 10-0981, ¶ 18 (memorandum decision filed Nov. 15, 2011). Rivera sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no claims to raise pursuant to Rule 32. Rivera filed a pro se petition, which the trial court denied after holding an evidentiary hearing on Rivera's claim that trial counsel had been ineffective in relation to a plea offer from the state.
¶3 A few months later, Rivera filed a new petition for post-conviction relief asserting his trial counsel had been ineffective in failing to present mitigating evidence and that he was permitted to raise the claim pursuant to Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), because it "should have been raised by counsel on initial [post-conviction] review." The trial court summarily dismissed the petition, and this petition for review followed.
¶4 On review, Rivera repeats his claim of ineffective assistance as well as his argument that he is permitted to raise this claim in a successive proceeding pursuant to Martinez. But Rivera's
claim of ineffective assistance of counsel cannot be raised in a successive and untimely proceeding like this one. Ariz. R. Crim. P. 32.1(a), 32.4(a). And nothing in Martinez alters that result. The Supreme Court determined in Martinez that, as a matter of equity, a non-pleading defendant may be able to obtain federal habeas review of a claim that is procedurally barred if he can show ineffective assistance of his first post-conviction counsel. Martinez, ___ U.S. at ___, 132 S. Ct. at 1319-20. As we explained in State v. Escareno-Meraz, that holding does not apply to Arizona post-conviction proceedings because non-pleading defendants, like Rivera, "have no constitutional right to counsel in post-conviction proceedings." 232 Ariz. 586, ¶¶ 4-6, 307 P.3d 1013, 1014 (App. 2013). The trial court did not err in summarily dismissing Rivera's petition. Ariz. R. Crim. P. 32.6(c).
¶5 We grant review but deny relief.