Opinion
No. 2 CA-CR 2018-0347-PR
02-20-2019
THE STATE OF ARIZONA, Respondent, v. JULIAN ADRIAN WYATT, Petitioner.
Julian Wyatt, Tucson 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20063253
The Honorable D. Douglas Metcalf, Judge
REVIEW GRANTED; RELIEF DENIED
Julian Wyatt, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred. EPPICH, Presiding Judge:
¶1 Julian Wyatt 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 order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Wyatt has not shown such abuse here.
¶2 After a jury trial, Wyatt was convicted of first-degree murder and sentenced to life in prison without the possibility of release for twenty-five years. This court affirmed his conviction and sentence on appeal. State v. Wyatt, No. 2 CA-CR 2008-0274 (Ariz. App. July 28, 2009) (mem. decision). Wyatt has sought and been denied post-conviction relief on at least four previous occasions; in the first three we denied relief on review and, in the last, Wyatt did not timely seek review of the trial court's ruling. State v. Wyatt, No. 2 CA-CR 2014-0307-PR (Ariz. App. Oct. 22, 2014) (order); State v. Wyatt, No. 2 CA-CR 2013-0239-PR (Ariz. App. Nov. 19, 2013) (mem. decision); State v. Wyatt, No. 2 CA-CR 2012-0302-PR (Ariz. App. Nov. 15, 2012) (mem. decision); State v. Wyatt, No. 2 CA-CR 2011-0288-PR (Ariz. App. Feb. 8, 2012) (mem. decision).
¶3 In his most recent proceeding, Wyatt filed a notice of and petition for post-conviction relief purporting to raise claims of newly discovered evidence, a significant change in the law, and actual innocence. See Ariz. R. Crim. P. 32.1(e), (g), (h). The trial court summarily dismissed the proceeding. It noted that Wyatt had not identified any new facts but instead had merely re-alleged claims that had previously been raised and rejected. It further concluded the significant change in the law Wyatt had identified—Martinez v. Ryan, 566 U.S. 1 (2012)—did not apply to him because he was a non-pleading defendant. Finally, it determined that Wyatt's claim of actual innocence should instead be characterized as a claim of ineffective assistance of trial counsel, a claim that Wyatt had raised in previous proceedings. This petition for review followed.
¶4 On review, Wyatt asserts he identified new, exculpatory evidence in support of his claims pursuant to Rule 32.1(e) and (h). The only evidence he cites, however, is his own 2014 affidavit describing a potential witness's testimony and a 2017 affidavit in which the affiant claims Wyatt had told her he had been present but uninvolved in the incident leading to his conviction. Wyatt's own statements obviously do not constitute newly discovered evidence. See State v. Saenz, 197 Ariz. 487, ¶ 13 (App. 2000) (evidence known to the defendant not newly discovered); see also Ariz. R. Crim. P. 32.1(e). And, not only do the statements have virtually no exculpatory value, but Wyatt has offered no explanation for his failure to obtain and present them sooner. Thus, he has demonstrated neither due diligence in obtaining the evidence, as required to raise a claim of newly discovered evidence, see Ariz. R. Crim. P. 32.1(e)(2), nor explained his failure to raise this claim in one of his numerous previous petitions, as required by Rule 32.2(b) before a defendant may raise a claim of newly discovered evidence or actual innocence. In sum, Wyatt has failed to show the trial court erred by summarily dismissing his most-recent petition for post-conviction relief.
Wyatt has apparently abandoned his claim of a significant change in the law. --------
¶5 We grant review but deny relief.