Opinion
No. 2 CA-CR 2013-0425-PR
01-07-2014
THE STATE OF ARIZONA, Respondent, v. DAVID JEROLD SHANK, Petitioner.
David Jerold Shank, Florence 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NOT FOR PUBLICATION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. CR199000706
The Honorable Eddward Ballinger Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
David Jerold Shank, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Petitioner David Shank 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). Shank has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Shank was convicted of first-degree murder, and the trial court sentenced him to a "natural life" term of imprisonment. Shank's conviction and sentence were affirmed on appeal. State v. Shank, No. 1 CA-CR 00-0912 (memorandum decision filed Nov. 29, 2001).
¶3 Shank thereafter initiated two proceedings for post-conviction relief. In each one, the trial court denied relief, and review was denied.
¶4 Shank then filed a petition for a writ of habeas corpus, arguing the jury had been improperly instructed on premeditation. As best we can understand his argument, he attempted to contend there had been a significant change in the law relating to premeditation instructions, apparently relying on our supreme court's decision in State v. Thompson, 204 Ariz. 471, 65 P.3d 420 (2003), although he did not actually cite that case directly, instead citing the vacated decision of Division One of this court. The trial court properly treated the petition as one for post-conviction relief under Rule 32.3, and summarily denied relief. The court also denied Shank's subsequent motion for rehearing.
Indeed, most of the cases Shank cited in his petition were decided before he committed his offense.
¶5 On review, Shank claims the trial court abused its discretion in finding his claim precluded under Rule 32.1(a), rather than treating it as one based on a significant change in the law pursuant to Rule 32.1(g). As the court correctly ruled, however, a claim that jury instructions were faulty is generally raised pursuant to Rule 32.1(a), as it would suggest the conviction was unconstitutional.
¶6 To the extent the trial court overlooked Shank's attempt to argue the claim was not precluded because it was based on a significant change in the law, we cannot find fault. Shank did not actually cite the case he apparently suggests constitutes a change in the law, and he failed to adequately argue how Thompson was such a change. Indeed, the Thompson court itself suggested it was not, instructing trial courts "in future cases" to give the corrected instruction. 204 Ariz. 471, ¶ 32, 65 P.3d at 428. And although Shank contended in his motion for rehearing that he could not have raised the issue in his appeal, he does not explain why he did not raise it in his last Rule 32 proceeding, which occurred after Thompson was decided.
¶7 For these reasons, although we grant the petition for review, relief is denied.