Opinion
2 CA-CR 2023-0073-PR
04-02-2024
The State of Arizona, Respondent, v. Melvin Williams Jr., Petitioner.
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent Melvin Williams Jr., Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR201702544 The Honorable Patrick K. Gard, Judge
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent
Melvin Williams Jr., Tucson In Propria Persona
Presiding Judge Brearcliffe authored the decision of the Court, in which Judge Kelly and Judge Eckerstrom concurred.
MEMORANDUM DECISION
BREARCLIFFE, Presiding Judge
¶1 Melvin Williams Jr. 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 this ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Williams has not established such abuse.
¶2 After a jury trial, Williams was convicted of conspiracy to possess methamphetamine for sale, sale of methamphetamine, offering to sell methamphetamine, possession of methamphetamine for sale, possession of drug paraphernalia, and use of an electronic communication in a drug-related transaction. The trial court sentenced him to concurrent prison terms, the longest of which are twenty years. We affirmed his convictions and sentences on appeal. State v. Williams, No. 2 CA-CR 2019-0227 (Ariz. App. Sept. 21, 2020) (mem. decision).
¶3 Williams then sought post-conviction relief, arguing his trial and appellate counsel had been ineffective, that a search of his home violated the Fourth Amendment, and that he was actually innocent. The trial court summarily dismissed the petition, concluding that Williams's Fourth Amendment claim was precluded because he did not raise it on appeal and that his remaining claims did not entitle him to relief. The court noted that Williams had not demonstrated any prejudice resulting from the purported deficiencies of trial and appellate counsel. It further observed that his claim of actual innocence was grounded in testimony that the witness later had recanted-and, indeed, the witness pleaded guilty to perjury. The court denied Williams's motion for rehearing, and this petition for review followed.
¶4 On review, Williams first argues the trial court's order dismissing his petition was "untimely" because it was not entered within thirty days of his petition being filed, citing Rule 32.11(b). Rule 32.11(a) requires a court to summarily dismiss a petition "[i]f, after identifying all precluded and untimely claims, the court determines that no remaining claim presents a material issue of fact or law that would entitle the defendant to relief." Rule 32.11(b) requires the court to "set a status conference or a hearing within 30 days" if it "does not summarily dismiss the petition." Contrary to Williams's position, the rule does not set a timeframe in which the court must decide whether to hold a conference or hearing. Instead, it requires only that the court set a conference or hearing if it does not summarily dismiss the petition under Rule 32.11(a). Because the court summarily dismissed Williams's petition, Rule 32.11(b) does not apply.
¶5 Williams next argues the trial court erred by granting the state's second request for an extension to file its response to his petition for post-conviction relief without waiting for him to file an objection to the state's request. Williams is correct that Rule 1.9(b), Ariz. R. Crim. P., permits a response to a motion to be filed within ten days of service. But the rule also permits a court to "waive a requirement specified in this rule." Ariz. R. Crim. P. 1.9(d). Thus, a court may rule on a pending motion without awaiting a response. In any event, Williams has not shown prejudice. The court reviewed his objection to the state's extension request and, treating it as a motion for reconsideration, determined the state had demonstrated extraordinary circumstances warranting an extension under Rule 32.9(a)(1). Williams has not argued that finding was error.
Williams also seems to assert the extension motion was not properly filed under Rule 1.7(a), Ariz. R. Crim. P., because it was not filed with the clerk. The record demonstrates otherwise.
¶6 Williams also asserts the trial court improperly stated that a search warrant had been executed, complaining that no warrant or supporting affidavit exists in the index of record. This argument is specious. Before trial, Williams was provided an audio recording of the warrant and the supporting affidavit, and the court denied his motion related to the validity of that warrant.
¶7 Next, Williams argues the trial court lacked jurisdiction due to a defective finding of probable cause. Williams did not raise a jurisdictional claim below under Rule 32.1(b). We thus decline to address this claim for the first time on review. See State v. Ramirez, 126 Ariz. 464, 468 (App. 1980).
¶8 Williams additionally contends the trial court erred in finding his Fourth Amendment claim precluded because it was not raised on appeal. A defendant is normally precluded from raising a constitutional claim in a post-conviction proceeding when that claim could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(3). Williams asserts, however, that his claim is exempt from waiver because it involves "a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant." Id. But counsel may waive a Fourth Amendment claim by failing to advance it. See State v. Jean, 243 Ariz. 331, ¶ 39 (2018). Personal waiver is not required. The trial court did not err by finding this claim precluded under Rule 32.2(a)(3).
¶9 Next, Williams argues the trial court erred in summarily dismissing his claims of ineffective assistance of counsel. "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. To establish prejudice under the second prong of Strickland, a defendant cannot meet his burden by "mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999). Instead, a defendant must establish a reasonable probability that, absent counsel's errors, the proceeding would have had a different result. State v. Miller, 251 Ariz. 99, ¶ 17 (2021). In his petition for review, Williams does not address the court's determination that he had not demonstrated any likelihood the result of his trial or appeal would have been different. Thus, we need not address this issue further.
¶10 Last, Williams reasserts his claim of actual innocence under Rule 32.1(h), maintaining the witness convicted of perjury had pleaded guilty only because the state "inflicted mental stress" on him. The witness in question-Williams's son, M.W.-had testified in a previous proceeding that the drugs found at Williams's home belonged to him. After this testimony, the court continued the trial, and the state later reindicted Williams.
¶11 The first trial on that indictment-at which M.W. testified- ended in a mistrial. At the first trial, M.W. testified that he had admitted his previous testimony was false and had pleaded guilty to perjury. M.W. nonetheless insisted that the drugs were his and that he had recanted his previous testimony only "for the plea." M.W. did not testify at Williams's second trial.
¶12 To obtain relief under Rule 32.1(h), Williams was required to "demonstrate[] by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would find the defendant guilty of the offense beyond a reasonable doubt." M.W.'s testimony does not meet this threshold. Recanted testimony is "inherently unreliable." State v. Hickle, 133 Ariz. 234, 238 (1982). While an individual juror might accept as credible M.W.'s claim of responsibility, a reasonable juror could also find that testimony less than credible and, notwithstanding the recantation, find M.W. guilty beyond a reasonable doubt.
¶13 We grant review but deny relief.