Opinion
No. 2 CA-CR 2014-0302-PR
10-02-2014
THE STATE OF ARIZONA, Respondent, v. STEPHEN PAUL SAMANIEGO II, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Lisa Marie Martin, Deputy County Attorney, Phoenix Counsel for Respondent Stephen Paul Samaniego II, San Luis 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2009120107001SE
The Honorable Michael W. Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Lisa Marie Martin, Deputy County Attorney, Phoenix
Counsel for Respondent
Stephen Paul Samaniego II, San Luis
In Propria Persona
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 Petitioner Stephen Samaniego II 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 a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Samaniego has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Samaniego was convicted of two counts of aggravated assault. The trial court sentenced him to enhanced, presumptive, concurrent prison terms of 7.5 years. Samaniego's appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), after which Samaniego failed to timely file a supplemental pro se brief, and his convictions and sentences were affirmed on appeal. State v. Samaniego, No. 1 CA-CR 11-0117, ¶¶ 1, 12 (memorandum decision filed Oct. 6, 2011).
¶3 Samaniego thereafter sought post-conviction relief, and appointed counsel filed a notice, pursuant to Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614 (1995), stating she had reviewed the record and was "unable to find a tenable issue to submit to th[e] Court pursuant to" Rule 32. In supplemental pro se petitions, however, Samaniego argued "the court's decision to give [him] the presumptive term was not appropriate." He also claimed he had received ineffective assistance of trial counsel in that "counsel allowed a biased juror . . . to be impaneled" and did not object to aggravators found by the court or investigate or present "all available mitigation." He further maintained appellate and Rule 32 counsel were ineffective in filing briefs pursuant to Anders and Montgomery respectively. And he contended he "was denied access to the courts on direct appeal," mainly based on his asserted lack of "access to a law library." The trial court summarily denied relief.
¶4 On review, Samaniego repeats his claims made below and asks this court "to correct a manifest injustice of Constitutional proportion." We will affirm the trial court if it is correct for any reason. Cf. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (appellate court obliged to affirm trial court's ruling if result legally correct for any reason).
In his petition below, Samaniego also argued counsel had been ineffective in having improperly "allowed a detective to give 'expert testimony' when not qualified to do so." Samaniego does not make this argument on review and, therefore, we do not address it. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "the reasons why the petition should be granted" and "specific references to the record"); State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review); cf. State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim.").
¶5 We agree with the trial court that Samaniego's claims that "[s]entencing error may have occurred" are precluded. See Ariz. R. Crim. P. 32.2(a)(3). His sentencing claims were not raised on appeal, and this court noted in reviewing the matter for reversible error pursuant to Anders that the trial court had "received and considered a presentence report," "consider[ed] all the relevant circumstances," and "imposed a legal sentence." Furthermore, much of Samaniego's claim in this regard relates to alleged ineffective assistance of trial counsel and counsel's purported failure to adequately investigate alleged mitigation evidence.
Samaniego contends his sentence was in violation of the rule set forth in Blakely v. Washington, 542 U.S. 296 (2004), because the trial court could have used aggravating factors to balance out the mitigating factors. Even were such a claim not precluded, it is without merit. Blakely is not applicable because it only applies when a fact not found by a jury increases the punishment imposed beyond the presumptive term. See State v. Miranda-Cabrerea, 209 Ariz. 220, ¶ 34, 99 P.3d 35, 42-43 (App. 2004).
¶6 "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." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To show prejudice, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
¶7 Samaniego first contends his trial counsel "allowed a biased juror to be impaneled." As Samaniego concedes, however, the juror at issue was chosen as the alternate and did not participate in deliberations or the verdict. Because the juror had no role in the verdict, even accepting arguendo that counsel's performance was deficient in failing to use a peremptory strike to remove the juror, Samaniego has failed to establish that any such failure caused him prejudice. Although he claims the juror's "biased state of mind spilled over, rubbed off" on other jurors, he does not provide any facts showing that any rub-off actually occurred. The trial court therefore did not abuse its discretion in rejecting this claim of ineffective assistance.
¶8 Likewise, we cannot say the trial court abused its discretion in rejecting Samaniego's claim that counsel was ineffective in failing to adequately investigate and present mitigation evidence. Samaniego claims "mitigators, of mental illnesses . . . and family mitigators" were available and could have been presented to the court "but for counsel's lack of investigation." In identifying such mitigating factors in his petition below, Samaniego noted a mitigation specialist's report stating that Samaniego is afflicted with Attention Deficit Hyperactivity Disorder (ADHD) and a learning disability. Samaniego also alleged he suffers from "traumas related to losing a son, and not being able to see his daughter." But the mitigation specialist's report was submitted to the court, and the court specifically stated it had considered it. That report addressed Samaniego's learning disability and ADHD. Likewise, the court was presented with information that Samaniego's infant son had died and that he faced difficulties in seeing his daughter. Samaniego has therefore not established that counsel's performance was deficient or that any deficiency caused him prejudice.
¶9 Samaniego's claims that appellate counsel and Rule 32 counsel were ineffective also are without merit. As to appellate counsel, Samaniego summarily asserts it was ineffective for counsel to have filed an Anders brief. Samaniego cites no authority, however, to suggest that appellate counsel's performance may be found deficient solely on the basis of his having filed an Anders brief. And he has not established "a reasonable probability that but for counsel's [purported] errors, the outcome of the appeal would have been different." State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995). With respect to Rule 32 counsel, Samaniego is a nonpleading defendant, and our supreme court has made clear that a nonpleading defendant's allegation of ineffective assistance of Rule 32 counsel is not a cognizable constitutional claim under Rule 32. State v. Mata, 185 Ariz. 319, 336-37, 916 P.2d 1035, 1052-53 (1996).
¶10 Finally, Samaniego's claims relating to his lack of access to a law library are not cognizable claims under Rule 32 because they do not implicate his conviction or sentence but rather concern only the alleged post-trial denial of his rights. See Ariz. R. Crim. P. 32.1. To the extent his claims can be read to challenge the constitutionality of his conviction based on prejudice arising from a lack of access to the court on appeal, such a claim is precluded as having been "finally adjudicated on the merits" during his appeal. Ariz. R. Crim. P. 32.2(a)(2). Samaniego made the same argument in his motion for an extension of time to file a supplemental appellate brief and his motion for reconsideration of this court's denial of that motion, which we also denied. See Ariz. R. Crim. P. 32.2(a)(2).
¶11 For all these reasons, although we grant the petition for review, we deny relief.