State v. Bolden ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
JAMES GERMAINE BOLDEN, Petitioner.
No. 1 CA-CR 14-0516 PRPC
FILED 8-11-2016
Petition for Review from the Superior Court in Maricopa County
No. CR 2002-005449
The Honorable Rosa Mroz, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
James Germaine Bolden, Winslow
Petitioner Pro Se
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
STATE v. BOLDEN
Decision of the Court
T H O M P S O N, Judge
¶1 James Germaine Bolden petitions for review of the superior
court's summary dismissal of a “Writ of Coram Nobis – Writ of Error”
which the court treated as a notice of post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32. We have considered his petition
for review and, for the reasons stated, grant review but deny relief.
¶2 A jury convicted Bolden of armed robbery. On December 18,
2002, the superior court sentenced him to a 15.75-year term of
imprisonment. The conviction and sentence were affirmed on appeal. State
v. Bolden, 1 CA-CR 03-0030 (Ariz. App. Dec 23, 2003) (mem. decision). The
mandate on the appeal issued on July 22, 2004.
¶3 Between 2004 and 2013, Bolden commenced three post-
conviction relief proceedings, all of which were unsuccessful. On July 11,
2014, Bolden filed a “Writ of Coram Nobis -Writ of Error,” raising a claim
of ineffective assistance of trial counsel in regards to his sentencing. The
superior court properly treated the filing as a notice of post-conviction
relief, see Rule 32.3, Ariz. R. Crim. P., and summarily dismissed it, ruling
the claim of ineffective assistance of counsel could not be raised in an
untimely Rule 32 proceeding. This petition for review followed.
¶4 On review, Bolden requests that this court reverse the
superior court’s summary dismissal of his claim for relief. We review the
summary dismissal of a post-conviction relief proceeding for abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006).
¶5 To be timely, a notice of post-conviction relief must be filed
within ninety days of entry of judgment and sentencing or within thirty
days after the issuance of the mandate on a direct appeal. Ariz. R. Crim. P.
32.4(a). “Any notice not timely filed may only raise claims pursuant to Rule
32.1(d), (e), (f), (g) or (h).” Id.; see also State v. Shrum, 220 Ariz. 115, 118, ¶
13, 203 P.3d 1175, 1178 (2009) (noting “few exceptions” to “general rule of
preclusion” for claims in untimely or successive petitions). Claims of
ineffective assistance of counsel do not fall within Rule 32.1(d), (e), (f), (g)
or (h) because they are “cognizable under Rule 32.1(a).” State v. Petty, 225
Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010); see also Ariz. R. Crim. P.
32.1(a) cmt. (noting claims of ineffectiveness of counsel and violations of
other constitutional rights fall under this subsection). Thus, the superior
court correctly ruled Bolden could not raise the ineffective assistance of
counsel claim in an untimely post-conviction proceeding.
2
STATE v. BOLDEN
Decision of the Court
¶6 Furthermore, the claim of ineffective assistance of counsel
raised by Bolden is precluded because it could have been raised in his prior
Rule 32 proceedings. Ariz. R. Crim. 32.2(a); see also State v. Spreitz, 202 Ariz.
1, 2, ¶ 4, 39 P.3d 525, 526 (2002) (“Our basic rule is that where ineffective
assistance of counsel claims are raised, or could have been raised, in a Rule
32 post-conviction relief proceeding, subsequent claims of ineffective
assistance will be deemed waived and precluded.”) (emphasis omitted).
Accordingly, there was no abuse of discretion by the superior court in
summarily dismissing the post-conviction relief proceeding.
¶7 We grant review, but deny relief.
:AA
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