Opinion
No. 2 CA-CR 2017-0375-PR
03-26-2018
THE STATE OF ARIZONA, Respondent, v. ISIDRO SAUCEDA, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix Counsel for Respondent Horne Slaton PLLC, Scottsdale By Sandra Slaton 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Maricopa County
No. CR2005112128001DT
The Honorable Janet E. Barton, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Gerald R. Grant, Deputy County Attorney, Phoenix
Counsel for Respondent
Horne Slaton PLLC, Scottsdale
By Sandra Slaton
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.
EPPICH, Judge:
¶1 Isidro Sauceda seeks review of the trial court's order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Sauceda has not shown such abuse here.
¶2 After a jury trial, Sauceda was convicted of first-degree murder, two counts of attempted first-degree murder, aggravated assault, and assisting a criminal street gang. He was sentenced to a combination of consecutive and concurrent prison terms, with an aggregate 37.5-year prison term to be followed by life imprisonment without the possibility of release for twenty-five years. We affirmed his convictions and sentences on appeal. State v. Sauceda, Nos. 1 CA-CR 08-1036, 1 CA-CR 10-0001 (Ariz. App. Jun. 23, 2011) (consol. mem. decision).
¶3 Sauceda sought and was denied post-conviction relief, and this court denied relief on review. State v. Sauceda, No. 2 CA-CR 2015-0174-PR (Ariz. App. Jun. 11, 2015) (mem. decision). He then filed a notice of and petition for post-conviction relief, claiming his Rule 32 counsel had been ineffective, there was newly discovered evidence (specifically, a doctor's report and exculpatory statements by Sauceda's then-girlfriend and a childhood friend), and he was actually innocent. The trial court summarily denied relief. It noted, first, that Sauceda or his counsel clearly had been aware of the purportedly new evidence or could have discovered it through the exercise of due diligence, given that the report was disclosed to trial counsel and Sauceda obviously knew the two potential witnesses and their potential testimony. It further observed that, whatever exculpatory value that evidence may have had, it did not establish his innocence in light of eyewitness testimony identifying him as the shooter. And, the court noted, Sauceda was not entitled to the effective assistance of Rule 32 counsel and his claims were not colorable in any event. This petition for review followed the court's denial of Sauceda's motion for rehearing.
¶4 On review, Sauceda repeats his claims. First, he argues that the report and witness statements are newly discovered under Rule 32.1(e) because he "found [the evidence] after trial with [his] due diligence." As the trial court pointed out, however, in State v. Saenz, we noted that "[e]vidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." 197 Ariz. 487, ¶ 13 (App. 2000). Sauceda's claimed lack of awareness of the medical report is immaterial; evidence in trial counsel's possession before trial was plainly not "discovered after trial or sentencing." Ariz. R. Crim. P. 32.1(e)(1). And, Sauceda does not argue that he was unaware of the potential witnesses or that his counsel was unaware of the report. The court did not err in summarily rejecting this claim.
¶5 Sauceda next asserts, citing Martinez v. Ryan, 566 U.S. 1 (2012), that he is entitled to raise a claim of ineffective assistance of Rule 32 counsel as an "equitable remedy" because he was appointed counsel. In Martinez, the United States Supreme Court concluded that defendants have an "equitable" but not constitutional, "right to the effective assistance of initial post-conviction counsel," but "it limited its decision to the application of procedural default in federal habeas review." State v. Escareno-Meraz, 232 Ariz. 586, ¶ 5 (App. 2013). As this court has explained, "Martinez does not alter established Arizona law," id. ¶ 6, that a non-pleading defendant cannot raise a claim of ineffective post-conviction counsel, id. ¶ 4. Further, in Escareno-Meraz, we concluded we lacked the authority to disregard our supreme court and "create a right for non-pleading defendants to effective representation in Rule 32 proceedings" and, in any event, found "no basis to do so." Id. ¶ 6. Sauceda has offered nothing to suggest we can or should chart a different course here.
¶6 Lastly, Sauceda repeats his claim of actual innocence in light of the witness statements and report. To prevail on a claim of actual innocence under Rule 32.1(h), Sauceda is required to show "by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty beyond a reasonable doubt." As the trial court pointed out, Sauceda has ignored the evidence presented at trial identifying him as the shooter. In light of that evidence, we agree with the court that Sauceda has not shown that "no reasonable fact-finder" could have rejected the testimony of both his then-girlfriend and his childhood friend and found him guilty.
¶7 We grant review but deny relief.