Opinion
No. 2 CA-CR 2015-0016-PR
04-08-2015
THE STATE OF ARIZONA, Respondent, v. IROQUOIS DANIEL SULLIVAN, Petitioner.
Iroquois Sullivan, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Gila County
No. S0400CR201200456
The Honorable Peter J. Cahill, Judge
REVIEW GRANTED; RELIEF DENIED
Iroquois Sullivan, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Iroquois Sullivan seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Sullivan has not met his burden of demonstrating such abuse here.
¶2 After a jury trial, Sullivan was convicted of possession of drug paraphernalia and sentenced to a 4.5-year prison term. We affirmed his conviction and sentence on appeal. State v. Sullivan, No. 2 CA-CR 2013-0511 (memorandum decision filed June 11, 2014).
¶3 Sullivan then sought post-conviction relief, arguing trial counsel had been ineffective by: (1) failing to timely seek to withdraw despite his "dissatisf[action] with [her] services" and his several motions requesting new counsel; (2) failing to interview and call as a witness his mother, who purportedly would have testified "that a number of other people" had access to Sullivan's bedroom where the paraphernalia was found; and (3) by failing to timely request an examination pursuant to Rule 11, Ariz. R. Crim. P., instead filing the request days before trial. He further claimed appellate counsel had been ineffective for failing to argue that his requests for new counsel should have been granted. The trial court summarily denied relief. This pro se petition for review followed.
¶4 On review, Sullivan repeats his claim that counsel was ineffective for failing to interview his mother and call her at trial. "To state a colorable claim of ineffective assistance of counsel," Sullivan was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating whether Sullivan has raised a colorable claim and is thus entitled to an evidentiary hearing, the trial court was required to treat the assertions he made in his affidavit as true. See State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004). We must presume counsel provided effective assistance, and a reasoned, strategic decision by counsel cannot support a claim of ineffective assistance of counsel. See State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013).
Sullivan mentions in passing his claim that appellate counsel was ineffective, but he does not develop this argument in any meaningful way, and we therefore do not address it. 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."). He does not suggest the trial court erred in rejecting his other post-conviction claims.
¶5 Even taking as true the assertions in Sullivan's affidavit, however, he has failed to raise a colorable claim of ineffective assistance of counsel. In his affidavit, he avowed only that "[t]o [his] knowledge," trial counsel never contacted his mother about testifying. He gave no indication of the basis for this belief, and he did not provide a supporting affidavit from his mother. In contrast, the state provided an affidavit from trial counsel, in which she stated she had interviewed Sullivan's mother and made a "tactical decision" to not call her at trial. In light of counsel's direct avowal, Sullivan's unsubstantiated claim to the contrary is insufficient to warrant an evidentiary hearing. Cf. State v. Krum, 183 Ariz. 288, 294, 903 P.2d 596, 602 (1995) (trial court may "properly discount" affidavit that lacks "reliable factual foundation").
¶6 Although we grant review, we deny relief.