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Tamplin v. Morris

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 25, 2019
No. 2 CA-HC 2019-0003 (Ariz. Ct. App. Nov. 25, 2019)

Opinion

No. 2 CA-HC 2019-0003

11-25-2019

GREGORY DAVID TAMPLIN, Petitioner/Appellant, v. STEPHEN MORRIS, Respondent/Appellee.

COUNSEL Gregory Tamplin, Florence In Propria Persona Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent/Appellee


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NOT FOR PUBLICATION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. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. CR20074736
The Honorable Kenneth Lee, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL Gregory Tamplin, Florence
In Propria Persona Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent/Appellee

MEMORANDUM DECISION

Judge Espinosa authored the decision of the Court, in which Presiding Judge Eppich and Judge Eckerstrom concurred. ESPINOSA, Judge:

¶1 Gregory Tamplin seeks review of the trial court's order summarily dismissing his petition for writ of habeas corpus, which the court treated as a successive notice 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). Tamplin has not shown such abuse here.

¶2 After a jury trial, Tamplin was convicted of first-degree murder, aggravated assault, kidnapping, first-degree burglary, and two counts each of armed robbery and sexual assault. The trial court sentenced him to concurrent and consecutive sentences that included a life term without the possibility of release for twenty-five years. We affirmed his convictions and sentences on appeal. State v. Tamplin, No. 2 CA-CR 2009-0297 (Ariz. App. Nov. 29, 2010) (mem. decision). Tamplin's first post-conviction proceeding was dismissed when he did not file a pro se petition following counsel's review. State v. Tamplin, No. 2 CA-CR 2019-0054-PR (Ariz. App. Jun. 6, 2019) (mem. decision). The trial court summarily dismissed his second proceeding, and this court denied relief on review. Id.

¶3 In March 2019, Tamplin filed a petition for writ of habeas corpus arguing that, because A.R.S. §§ 13-604 and 13-702 were "recognized as unconstitutional in an unreported Arizona case," his convictions were based on "invalid law," his indictment was "void," and the trial court "had no subject matter jurisdiction" over his trial and sentencing. Treating the filing as a successive notice of post-conviction relief, the trial court summarily dismissed the petition, noting that Tamplin had identified no claims that could be raised in an untimely Rule 32 proceeding. Tamplin now seeks review of that order.

¶4 In his opening brief, Tamplin does not address the trial court's decision to treat his petition as a successive notice of post-conviction relief. Rule 32.3(b) and A.R.S. § 13-4233 require a court, when a defendant applies for habeas relief, to transfer the cause to the court of conviction when the application challenges the validity of the defendant's conviction or sentence. Additionally, the court of conviction "and all parties must apply Rule 32's procedures." Ariz. R. Crim. P. 32.3(b); § 13-4233. Thus, the court did not err by treating Tamplin's filing as a notice under Rule 32.

We do not address Tamplin's various arguments on this issue raised for the first time in his reply brief. See State v. Johnson, 247 Ariz. 166, n.3 (2019). --------

¶5 Nor did the trial court err in summarily dismissing the proceeding. Tamplin's claims cannot be raised in an untimely proceeding like this one because they are not cognizable under Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.4(a)(2)(A). And, insofar as Tamplin contends he is nonetheless entitled to relief because the trial court lacked subject-matter jurisdiction, his claims do not implicate the court's jurisdiction. See State v. Maldonado, 223 Ariz. 309, ¶¶ 13-14, 22-25 (2010) (state's failure to file information was nonjurisdictional claim subject to waiver); State v. Bryant, 219 Ariz. 514, ¶¶ 14-17 (App. 2008) (illegal sentence is not error amounting to lack of subject-matter jurisdiction).

¶6 We grant review but deny relief.


Summaries of

Tamplin v. Morris

ARIZONA COURT OF APPEALS DIVISION TWO
Nov 25, 2019
No. 2 CA-HC 2019-0003 (Ariz. Ct. App. Nov. 25, 2019)
Case details for

Tamplin v. Morris

Case Details

Full title:GREGORY DAVID TAMPLIN, Petitioner/Appellant, v. STEPHEN MORRIS…

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Nov 25, 2019

Citations

No. 2 CA-HC 2019-0003 (Ariz. Ct. App. Nov. 25, 2019)