Opinion
2 CA-CR 2021-0102-PR
04-07-2022
The State of Arizona, Respondent, v. Ruben Cruz Rodriguez, Petitioner.
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Bureau Chief - Criminal Appeals, Florence Counsel for Respondent Ruben Cruz Rodriguez, Florence In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR201502134 The Honorable Kevin D. White, Judge
Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Bureau Chief - Criminal Appeals, Florence
Counsel for Respondent
Ruben Cruz Rodriguez, Florence
In Propria Persona
Presiding Judge Eckerstrom authored the decision of the Court, in which Chief Judge Vásquez and Judge Espinosa concurred.
MEMORANDUM DECISION
ECKERSTROM, PRESIDING JUDGE
¶1 Ruben Rodriguez seeks review of the trial court's rulings in his post-conviction relief proceedings brought under Rule 33, Ariz. R. Crim. P., and asks that this court grant him an extension to file a petition for review and order a jury trial on his claim that the Arizona Department of Corrections (ADOC) has interfered with his access to the courts. Because Rodriguez's arguments are not properly before this court, we dismiss the proceeding.
¶2 In 2016, Rodriguez pled guilty to child molestation, attempted child molestation, and attempted sexual conduct with a minor. The trial court sentenced him to a fifteen-year prison term for child molestation and, for the remaining offenses, suspended the imposition of sentence and placed Rodriguez on lifetime probation.
¶3 In August 2020, Rodriguez filed a notice of post-conviction relief, which the trial court summarily dismissed. Rodriguez did not seek review of that ruling, nor of the court's summary denial of his subsequent filings seeking to raise a claim of newly discovered evidence and other claims under Rule 33. Rodriguez filed another notice of post-conviction relief in December 2020, indicating that trial counsel had failed to timely seek post-conviction relief following his guilty plea and that he intended to raise claims of newly discovered material facts, a significant change in the law, and actual innocence. The court summarily dismissed that notice and, again, Rodriguez did not seek review of the ruling.
¶4 In July 2021, Rodriguez filed a "Motion for Rehearing Brady Violation" based on his "newly discovered claim of exculpatory Brady material." Treating that filing "as an untimely successive" petition for post-conviction relief, the trial court summarily dismissed it in August 2021. Rodriguez then filed a motion seeking leave to file a "delayed" petition for review of "all motions and petitions for post-conviction relief," including the orders rejecting his previous attempts to obtain relief. The court denied that motion as to its previous rulings but granted Rodriguez leave to file a delayed petition for review of its dismissal of his July 2021 petition for post-conviction relief. The court denied Rodriguez's subsequent motion for reconsideration and, in the same order, set a deadline for his petition of December 6, 2021.
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (state suppression of exculpatory evidence violates due process).
¶5 In November 2021, Rodriguez filed in this court a "Notification to the Appellate Court and Motion for a Jury trial, to include an extension to file a Petition for Review." Initially characterizing that filing as a petition for post-conviction relief, we invited the state to file a response, which it did, arguing the trial court had correctly dismissed Rodriguez's December 2020 notice of post-conviction relief. Upon further review, however, we have determined Rodriguez's filing does not purport to be a petition for review under Rule 33.16 and does not seek review of the court's dismissal of Rodriguez's December 2020 notice or July 2021 petition.
¶6 Instead, Rodriguez asks this court to review the trial court's denial of his motion for reconsideration of the order rejecting his request to file a delayed petition for review encompassing all his previous post-conviction proceedings. He also alleges that his "access to the courts" has been improperly limited by ADOC and that ADOC routinely retaliates against inmates seeking to exercise their constitutional rights. He requests we order a jury trial to address these allegations. Finally, he asks this court for a ninety-day extension to file a petition for review, to begin after "the access to the courts issue is fully and fairly resolved."
¶7 This court does not have authority to extend the time to file a petition for review or to grant leave to file a delayed petition. See Ariz. R. Crim. P. 33.16(a)(4)(B). And the trial court's order denying such a request is not subject to review under Rule 33.16. See Ariz. R. Crim. P. 33.16(a)(1) (petition for review limited to "trial court's final decision on a petition or a motion for rehearing, or the dismissal of a notice"). Instead, such a ruling is reviewable by a special action petition filed in this court. See Ariz. R. P. Spec. Act. 1, 3; see also Potter v. Vanderpool, 225 Ariz. 495, ¶ 7 (App. 2010) (special action appropriate vehicle to challenge interlocutory ruling). But Rodriguez does not invoke our special action jurisdiction, and we decline to sua sponte treat his filing as a petition seeking special action relief. Regarding Rodriguez's allegations against ADOC, they are not cognizable under Rule 33-which does not encompass claims of constitutional violations occurring during a defendant's incarceration-and this court does not have authority to order a jury trial to address them in a post-conviction proceeding. See Ariz. R. Crim. P. 33.1 (identifying bases for post-conviction relief); see also State v. Davis, 148 Ariz. 62, 64 (App. 1985) ("[T]his court has no jurisdiction to rule on the merits of a petition for post-conviction review where no ground cognizable under Rule 32 is asserted.").
¶8 Because Rodriguez has identified no issue properly before this court and the time for him to file a petition for review has long passed, see Ariz. R. Crim. P. 33.16(a)(1), we dismiss the proceeding.