Opinion
2 CA-CR 2024-0030-PR
07-26-2024
The State of Arizona, Respondent, v. Duane Lee Threadgill, Petitioner.
Duane L. Threadgill, Yuma In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2016002129001DT The Honorable Sam J. Myers, Judge
Duane L. Threadgill, Yuma In Propria Persona
Presiding Judge Gard authored the decision of the Court, in which Judge Eckerstrom and Judge Kelly concurred.
MEMORANDUM DECISION
GARD, Presiding Judge
¶1 Petitioner Duane Threadgill seeks review of the trial court's order summarily dismissing his successive notice of post-conviction relief, filed under Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. State v. Bennett, 213 Ariz. 562, ¶ 17 (2006). Threadgill has failed to establish such abuse here.
¶2 After a jury trial, Threadgill was convicted of first-degree burglary, possession or use of narcotics, and two counts each of kidnapping and armed robbery. The trial court sentenced him to concurrent and consecutive prison terms totaling twenty-five years. This court affirmed his convictions and sentences on appeal. State v. Threadgill, No. 1 CA-CR 18-0842 (Ariz. App. Oct. 6, 2020) (mem. decision). Thereafter, he twice sought and was denied post-conviction relief. State v. Threadgill, No. 1 CA-CR 23-0220 PRPC, ¶¶ 3-5 (Ariz. App. Nov. 9, 2023) (mem. decision).
¶3 In December 2023, Threadgill filed the current notice of post-conviction relief, arguing the failure to timely file that notice had not been his fault. Citing Martinez v. Ryan, 566 U.S. 1 (2012), he maintained that his Rule 32 counsel had failed to send him legal documents and to raise certain claims in the first Rule 32 proceeding. He also asserted that his sentence was not authorized by law and that he was actually innocent under Rule 32.1(c) and (h), respectively.
¶4 Later that month, the trial court summarily dismissed Threadgill's notice. The court explained that in his second Rule 32 notice Threadgill had also asserted the untimely filing was not his fault but that of his Rule 32 counsel. The court therefore concluded the claim was successive and Threadgill had failed to cite authority for excusing his untimeliness at that point. The court also observed that Threadgill's reliance on Martinez was misplaced because that case "may permit [Threadgill] to seek relief in federal court concerning his trial counsel but does not entitle him to raise state court claims in an untimely fashion." The court further determined that because Threadgill had raised a claim of Rule 32 counsel's ineffectiveness in the second Rule 32 proceeding, relief as to that ground was precluded. In part because Threadgill had failed to establish that he was timely raising his Rule 32.1(c) and (h) claims, the court rejected those claims as well. This petition for review followed.
¶5 On review, Threadgill maintains there was a "fundamental miscarriage of justice" because the trial court dismissed his notice without reviewing his claims "on their merits." But a court can summarily dismiss a notice of post-conviction relief if the claims asserted therein are precluded or if they were raised in a successive or untimely notice and the defendant failed to provide sufficient reasons why he did not raise them previously or in a timely manner. See Ariz. R. Crim. P. 32.2(a), (b). That is precisely what happened here. The court concluded that Threadgill had failed to "assert substantive claims and adequately explain the reasons for their untimely assertion."
¶6 Threadgill also reasserts his claim that his current notice's untimeliness was his Rule 32 counsel's fault. He again relies on Martinez for the proposition that Rule 32 counsel's claimed ineffectiveness "excuse[s] his failure to comply with Arizona's [p]rocedural [r]ules." But the trial court correctly pointed out that Threadgill made this exact argument in his second Rule 32 proceeding. Threadgill, No. 1 CA-CR 23-0220 PRPC, ¶ 4. And Threadgill has directed us to no authority-and we are aware of none-that would excuse the untimely filing based on a previously made argument.
¶7 Moreover, as the trial court explained, Martinez is limited to federal habeas corpus cases and does not apply here. There, the Supreme Court determined that "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, . . . counsel . . . was ineffective." Martinez, 566 U.S. at 17. Here, Threadgill, a non-pleading defendant, attempted to raise a claim of ineffective assistance of Rule 32 counsel in a successive state proceeding for post-conviction relief. See State v. Escareno-Meraz, 232 Ariz. 586, ¶¶ 4-6 (App. 2013) (non-pleading defendants have no constitutional right to counsel in post-conviction proceedings; Martinez does not change Arizona law). The court did not err by summarily dismissing Threadgill's notice. See Bennett, 213 Ariz. 562, ¶ 17.
¶8 Accordingly, we grant review but deny relief.