Opinion
No. 2 CA-CR 2014-0304-PR
09-22-2014
THE STATE OF ARIZONA, Respondent, v. JAMES LEON WALKER, Petitioner
James Leon Walker, 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NOT FOR PUBLICATION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. CR2000012987
The Honorable Peter C. Reinstein, Judge
REVIEW GRANTED; RELIEF DENIED
James Leon Walker, Florence
In Propria Persona
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. VÁSQUEZ, Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 James Walker seeks review of the trial court's order 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 clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Walker has not met his burden of demonstrating such abuse here.
¶2 In 2001, Walker pled guilty to attempted child molestation and attempted sexual conduct with a minor. The trial court sentenced Walker to a fifteen-year prison term for attempted child molestation and, for attempted sexual conduct with a minor, suspended the imposition of sentence and placed Walker on lifetime probation.
¶3 Before this proceeding, Walker has sought post-conviction relief on at least eight occasions and has been denied relief except for a modification to his presentence incarceration credit.
¶4 Walker filed his most recent petition for post-conviction relief on March 2013, arguing he was entitled to deoxyribonucleic acid (DNA) testing pursuant to A.R.S. § 13-4240. He additionally asserted, without explanation, that his earned release credits had not been calculated properly, the trial court had refused to let him "fire [his] corrupt court appoint[ed] lawyer," the state had committed "misconduct[] with evidence," "school records of the step children" constituted newly discovered material facts entitling him to relief from his convictions, and his trial counsel had been ineffective in failing to move for a mental health examination. Walker requested that counsel be appointed and that he be provided a "copy of [his] Jan. 25, 2001, D.N.A. test results." The trial court summarily dismissed the petition, concluding Walker had not demonstrated DNA testing was required pursuant to § 13-4240 and rejecting as untimely his claim of ineffective assistance of counsel.
¶5 On review, although Walker cites § 13-4240, he does not appear to seek post-conviction DNA testing as permitted by that statute—he does not identify any "evidence that is in the possession or control of the court or the state" that "was not previously subjected to [DNA] testing or was not subjected to the testing that is now requested and that may resolve an issue not previously resolved by the previous testing." He instead claims the state improperly withheld DNA test results and, had those "test results and all lab reports" been available before trial, he would have been exonerated. Walker also seems to suggest the state violated Brady v. Maryland, 373 U.S. 83 (1963), and Rule 15.1, Ariz. R. Crim. P., by failing to disclose other exculpatory evidence. But these claims, to the extent he raised them in his petition below, cannot be raised in an untimely proceeding. See Ariz. R. Crim. P. 32.4(a). And, despite his reference to newly discovered evidence—a claim raisable in an untimely proceeding—Walker has not identified on review any such evidence. See Ariz. R. Crim. P. 32.1(e), 32.4(a).
¶6 Walker also asserts that his counsel was ineffective for failing to raise an issue related to his sentence. Walker did not raise this claim below, and we do not address claims raised for the first time on review. See State v. Ramirez, 126 Ariz. 464, 467-68, 616 P.2d 924, 927-28 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review must contain "issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review"). And, although Walker suggests the trial court erred in implicitly rejecting his request for appointment of counsel, Walker is not entitled to appointed counsel in this, his ninth, Rule 32 proceeding. See Ariz. R. Crim. P. 32.4(c)(2).
¶7 For the reasons stated, although we grant review, we deny relief.