Opinion
2 CA-CR 2024-0035-PR
07-01-2024
The State of Arizona, Respondent, v. Gregory Nidez Valencia, Petitioner.
Gregory N. Valencia, Buckeye In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR051447001 The Honorable Catherine M. Woods, Judge
Gregory N. Valencia, Buckeye In Propria Persona
Judge Vasquez authored the decision of the Court, in which Judge O'Neil and Judge Kelly concurred.
MEMORANDUM DECISION
VASQUEZ, JUDGE
¶1 Gregory Valencia seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). To the extent Valencia has raised cognizable claims, he has not met his burden of establishing such abuse.
¶2 After a 1996 jury trial, Valencia was convicted of first-degree murder and two counts of first-degree burglary. The trial court sentenced him to imprisonment for natural life without the possibility of release for murder and to concurrent, 7.5-year prison terms for the burglary offenses. On appeal, this court vacated one of the burglary convictions but otherwise affirmed Valencia's convictions and sentences. State v. Valencia, No. 2 CA-CR 96-0652 (Ariz. App. Apr. 30, 1998) (mem. decision).
¶3 Valencia has sought, and been denied, post-conviction relief on numerous occasions. See, e.g., State v. Valencia, No. 2 CA-CR 2009-0317-PR, ¶¶ 1-2 (Ariz. App. Mar. 24, 2010) (mem. decision) (challenging dismissal of eighth petition for post-conviction relief). In 2016, however, this court granted relief on Valencia's sentencing claim based on Miller v. Alabama, 567 U.S. 460 (2012), and our supreme court remanded the case for further proceedings. State v. Valencia, 241 Ariz. 206, ¶¶ 7, 20 (2016), overruled by State ex rel. Mitchell v. Cooper, 256 Ariz. 1 , ¶ 47 (2023). Thereafter, Valencia was resentenced to life with the possibility of parole after twenty-five years. This court affirmed that sentence on appeal. State v. Valencia, No. 2 CA-CR 2019-0207 (Ariz. App. Aug. 14, 2020) (mem. decision). Valencia sought and was denied post-conviction relief in 2021, and this court denied relief on review. State v. Valencia, No. 2 CA-CR 2022-0003-PR, ¶¶ 4-5, 10 (Ariz. App. Mar. 23, 2022).
¶4 Valencia again sought post-conviction relief in August 2022, citing Rule 32.1(a), (c), (e), and (f) and arguing that Arizona's parole scheme was unconstitutional because it did not afford him a "reasonable opportunity for release." He asserted that, although he was denied parole after hearings in 2020 and 2022, he was entitled to additional parole hearings because previously scheduled hearings had been cancelled. He also asserted the composition of the Board of Executive Clemency violated A.R.S. § 31-401(B) because it included "three current or former law enforcement officers." And he argued the parole system improperly allowed the board to "arbitrarily deny parole and parole hearings, thus eliminating any reasonable opportunity for release despite the court's prior finding that [Valencia] committed the offense due to transient immaturity and was not irreparably corrupted."
Section 31-401(B) states in relevant part that "No more than two members from the same professional discipline shall be members of the board at the same time."
¶5 The trial court rejected Valencia's claim he had been improperly denied parole hearings. It noted Valencia's first hearing had been premature and the cancelled hearings had been scheduled to occur before he was parole eligible. However, it gave the parties leave to submit additional briefing and exhibits regarding the composition of the board at the time of Valencia's 2022 parole hearing. After neither party did so, the court dismissed the proceeding. This petition for review followed.
¶6 On review, Valencia first repeats his claims that he was entitled to the cancelled parole hearings and that the parole board's composition violated § 31-401(B). These claims are not cognizable under Rule 32. Rule 32.1 describes the available bases for post-conviction relief. Only one, subsection (d), addresses the deprivation of rights occurring after the defendant's conviction and sentence, permitting relief if a defendant is held past the expiration of the imposed sentence. The remaining subsections address defects in the conviction or sentence-not the post-sentencing deprivation of rights Valencia asserts here. His claims are properly brought by special action. See Stevenson v. Ariz. Bd. of Pardons &Paroles, 109 Ariz. 412, 413 (1973). In any event, even were Valencia's claims cognizable under Rule 32, he has identified no error in the trial court's determination that he was not eligible for parole until 2022 and that he was required to show the composition of the board at that time was in violation of the statute and had forgone the opportunity to do so. Thus, we need not address these claims further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (defendant waived claim when he did not "develop the argument in any meaningful way" on review).
¶7 Valencia also argues his sentence is unconstitutional because A.R.S. § 13-716 does not provide a meaningful opportunity for release, citing Miller, 567 U.S. 460, which prohibits mandatory sentences of life without parole for juvenile offenders convicted of homicide, and Montgomery v. Louisiana, 577 U.S. 190 (2016), which made that ruling retroactive. This constitutional claim falls under Rule 32.1(a) and, accordingly, is subject to preclusion on waiver grounds under Rule 32.2(a)(3). Section 13-716 was enacted in 2014, 2014 Ariz. Sess. Laws, ch. 156, § 2, and this claim was therefore available to Valencia in his first post-resentencing Rule 32 proceeding in 2021. Valencia's constitutional claim is thus precluded. See Ariz. R. Crim. P. 32.2(a)(3).
¶8 Valencia cited Rule 32.1(c) in his notice of and petition for post-conviction relief. Under Rule 32.1(c), a defendant may obtain relief from a sentence that, "as imposed is not authorized by law." Assuming, without deciding, that Valencia's constitutional claim attacking his sentence can also be raised under Rule 32.1(c), he has not demonstrated he is entitled to relief. First, although a claim under Rule 32.1(c) is not subject to preclusion on waiver grounds, see Ariz. R. Crim. P. 32.2(a)(3), 32.4(b)(3)(B), the claim is still subject to summary dismissal if the defendant does not "explain the reasons for not raising the claim in a previous notice or petition," Ariz. R. Crim. P. 32.2(b). Valencia has not explained his failure to raise this claim in his 2021 post-conviction proceeding. In any event, Valencia has not developed any argument on review regarding the constitutionality of § 13-716. Thus, we need not address this argument further. See Stefanovich, 232 Ariz. 154, ¶ 16.
Valencia also cited Rule 32.1(e) and (f) in his notice and petition below. Rule 32.1(e) provides for relief based upon newly discovered material facts, while Rule 32.1(f) may permit a defendant to file an untimely appeal. But he has not identified any new evidence nor developed any argument related to Rule 32.1(e), and Rule 32.1(f) does not apply to untimely claims seeking post-conviction relief.
¶9 We grant review but deny relief.