Opinion
No. 2 CA-CR 2016-0416-PR
03-22-2017
THE STATE OF ARIZONA, Respondent, v. TRAVIS OAKES WATSON, Petitioner.
COUNSEL The Law Offices of Thomas E. Higgins, P.L.L.C., Tucson By Thomas E. Higgins Counsel for Petitioner
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NOT FOR PUBLICATION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 Pima County
No. CR20072936001
The Honorable Scott Rash, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
The Law Offices of Thomas E. Higgins, P.L.L.C., Tucson
By Thomas E. Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Miller concurred.
ESPINOSA, Judge:
¶1 Travis Watson seeks review of the trial court's order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he alleged he was entitled to relief based on newly discovered material facts purportedly relevant to his sentencing. We will not disturb that order unless the court clearly abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015). Watson has not met his burden of demonstrating such abuse here.
¶2 Watson pled guilty in March 2008 to possessing methamphetamine, a dangerous drug, for sale. Simultaneously, he pled guilty to three other felonies and two misdemeanors under separate cause numbers. At a consolidated sentencing hearing, the trial court was reminded that Watson had a "stage three" Hepatitis C infection. The court responded that it had "read a lot and studied a lot about the Hepatitis C, and about 50 percent can be cured and about 50 percent cannot be cured. It can be managed, though, but I'm well aware of the problems and effects of that." The court imposed enhanced, concurrent sentences for Watson's four felony convictions, the longest of which was the aggravated, 13.75-year prison term imposed in this case.
¶3 Watson then sought post-conviction relief, arguing inter alia that his trial counsel had been ineffective at sentencing in failing to provide the trial court with specific information about his Hepatitis C infection and his prognosis and treatment while in prison. The court summarily dismissed that petition and denied Watson's subsequent motion for reconsideration, noting that "even assuming . . . that [Watson] has a bad form of Hepatitis C, that his
condition will worsen in prison and that he will not get treatment . . . in prison, the sentence imposed by the Court would be no different than the one it imposed." This court denied relief on review, concluding that, because the trial court had expressly stated it would impose the same sentence irrespective of Watson's medical condition and prognosis, he could not show any prejudice resulting from counsel's purported ineffectiveness. State v. Watson, No. 2 CA-CR 2009-0226-PR, ¶ 7 (Ariz. App. Feb. 17, 2010) (mem. decision).
¶4 In May 2011, Watson again sought post-conviction relief asserting he had obtained newly discovered material facts relevant to his medical condition. Specifically, he asserted that he was unlikely to respond to the treatment he was receiving and that the treatment provided by the Arizona Department of Corrections (ADOC) was, in any event, deficient for various reasons. The trial court summarily denied relief, and this court denied relief on review, again observing that the trial court had concluded it would not have imposed a different sentence irrespective of whether Watson's illness was being properly treated. State v. Watson, No. 2 CA-CR 2011-0230-PR (Ariz. App. Nov. 25, 2011) (mem. decision).
¶5 Watson filed another notice of and petition for post-conviction relief in 2013, this time asserting "new evidence of the severity of [his] condition, and the lack of treatment therefor," which he claimed was relevant to his sentence. The trial court summarily denied relief, concluding that "the severity of [Watson]'s illness and the quality of his treatment . . . are not newly discovered evidence." Watson did not seek review of that ruling.
¶6 In November 2016, Watson filed yet another petition for post-conviction relief asserting that evidence of ADOC's allegedly "systemic" failure to provide adequate medical care to inmates was newly discovered evidence relevant to his sentence pursuant to Rule 32.1(e). In his petition, he referred to Parsons v. Ryan, 754 F.3d 657, 662, 664 (9th Cir. 2014), in which the Ninth Circuit detailed allegations by inmates against ADOC in a class action lawsuit asserting "they are subject to systemic Eighth Amendment violations" resulting from, inter alia, inadequate medical care. The trial court summarily dismissed the petition, finding the claim was not colorable and stating
Watson had raised "substantially the same arguments" in his previous petitions. This petition for review followed.
¶7 On review, Watson asserts he has raised a colorable claim of newly discovered evidence pursuant to Rule 32.1(e). Evidence that a defendant had, at the time of sentencing, an undiagnosed medical condition relevant to the sentence imposed may qualify as newly discovered material facts entitling the defendant to relief pursuant to Rule 32.1(e). State v. Bilke, 162 Ariz. 51, 53, 781 P.2d 28, 30 (1989); State v. Cooper, 166 Ariz. 126, 130, 800 P.2d 992, 996 (App. 1990). But even assuming, without deciding, that evidence that a known medical condition would not be adequately treated in prison could constitute newly discovered evidence, Watson's claim fails for several reasons.
¶8 First, to obtain relief under Rule 32.1(e), Watson must establish that he "exercised due diligence in securing the newly discovered material facts." He has not attempted to make this showing and offers no explanation for his failure to raise this specific claim previously, although Parsons was decided in 2014. See also Ariz. R. Crim. P. 32.2(b) (petitioner required to show why untimely claim "was not stated in the previous petition or in a timely manner"). Additionally, beyond reciting the (unproven) allegations raised in the class action—which address conduct occurring after his sentencing, Watson provided the trial court with no evidence of a systemic failure by ADOC to provide medical care. Watson has therefore not demonstrated the evidence "existed at the time of [sentencing]." Bilke, 162 Ariz. at 52-53, 781 P.2d at 29-30.
¶9 Last, Watson ignores the trial court's previous finding that it would have imposed the same sentence even had it known Watson would receive inadequate treatment for his illness. See State v. Little, 87 Ariz. 295, 304, 350 P.2d 756, 761-62 (1960) (doctrine of res judicata generally applies in criminal cases). Thus, Watson has not shown the evidence "probably would have changed" his sentence as required by Rule 32.1(e). The court did not abuse its discretion in summarily dismissing Watson's latest petition for post-conviction relief.
¶10 Although we grant review, relief is denied.