State v. Romero-Gomez ( 2019 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NOEMI ROMERO-GOMEZ,
Petitioner.
No. 1 CA-CR 18-0522 PRPC
FILED 3-12-2019
Petition for Review from the Superior Court in Maricopa County
No. CR2013-103071-004
The Honorable Peter C. Reinstein, Judge, Retired
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Perkins Coie, LLP, Phoenix
By Barry Grant Stratford, Randal Boyd McDonald
Counsel for Petitioner
STATE v. ROMERO-GOMEZ
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.
J O H N S E N, Judge:
¶1 Noemi Romero-Gomez petitions this court for review of the
superior court's dismissal of her first petition for post-conviction relief. We
have considered the petition for review and, for the reasons stated below,
grant review but deny relief.
¶2 In 2013, the State charged Romero-Gomez with forgery and
aggravated identity theft under Arizona Revised Statutes ("A.R.S.") sections
13-2002 (2019) and -2009(A)(3) (2019), respectively.1 The factual basis for
both charges was that Romero-Gomez used someone else's permanent
resident card and Social Security card to obtain employment. Ultimately,
Romero-Gomez pled guilty to one count of criminal impersonation under
A.R.S. § 13-2006(A)(1) (2019), and the superior court suspended her
sentence and placed her on six months' unsupervised probation.
¶3 The following year, two undocumented aliens who had been
convicted of identity theft for using false names to obtain work filed a
lawsuit in federal court against the State of Arizona, Maricopa County and,
inter alia, former Maricopa County Sheriff Joseph Arpaio. In an
unpublished decision, the district court ruled that federal law preempted
the defendants from "(a) employing or relying on (b) any documents or
information (c) submitted to an employer solely as part of the federal
employment verification process (d) for any investigative or prosecutorial
purpose under the Arizona identity theft and forgery statutes." Puente
Arizona v. Arpaio, No. CV-14-01356-PHX-DGC, 2017 WL 1133012, at *8 (D.
Ariz. Mar. 27, 2017). Accordingly, the court permanently enjoined "[the]
Maricopa County Sheriff . . . and all persons acting in concert with [him]"
from
(a) employing or relying on (b) the Form I-9 and any other
documents or information (c) submitted to an employer solely
1 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.
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STATE v. ROMERO-GOMEZ
Decision of the Court
as part of the federal employment verification process (d) for
purposes of investigating or prosecuting violations of A.R.S.
§ 13-2002 . . . or § 13-2009(A)(3).
Id. at *17. The parties to that litigation then entered a settlement agreement,
and neither appealed the court's order.
¶4 After the district court issued its ruling, Romero-Gomez
petitioned the superior court for post-conviction relief under Arizona Rule
of Criminal Procedure 32.1(g). Romero-Gomez argued the Puente court's
ruling and injunction constituted a "significant change in the law" that, if
applied to her case, would overturn her conviction. See id. The superior
court denied Romero-Gomez's petition, ruling that Puente was not a
significant change in the law under Rule 32.1(g) because it was neither "an
appellate decision, nor did it overrule any prior opinion."
¶5 Romero-Gomez now petitions this court for review. As she
did in the superior court, Romero-Gomez argues the Puente court's ruling
and injunction constituted a significant change in the law under Rule
32.1(g). Specifically, Romero-Gomez argues a significant change in the law
occurred when the Puente court barred "the use of federal forms to
investigate or support a prosecution of state law crimes," which she
contends had been a "longstanding practice" in Maricopa County.
¶6 Rule 32.1(g) permits post-conviction relief if "there has been a
significant change in the law that, if applied to the defendant's case, would
probably overturn the defendant's conviction or sentence." The rule does
not define a "significant change in the law," but it "requires some
transformative event, a clear break from the past." State v. Shrum, 220 Ariz.
115, 118, ¶ 15 (2009) (quotation omitted). A "statutory or constitutional
amendment" or "an appellate court overrul[ing] previously binding case
law" constitutes the "archetype of such a change." Id. at 118-19, ¶¶ 16-17.
Other events also can constitute a significant change in the law. See, e.g.,
State v. Valencia, 241 Ariz. 206, 209, ¶ 15 (2016) (United States Supreme
Court's announcement of "a new substantive rule of constitutional law" that
was at odds with Arizona's sentencing scheme); State v. Slemmer, 170 Ariz.
174, 182-83 (1991) (disapproving longstanding recommended jury
instruction).
¶7 The State argues the district court order in Puente does not
satisfy Rule 32.1(g) because it is not a decision by an appellate court. The
State cites no case, however, holding that a judicial decision cannot
constitute a significant change in the law under Rule 32.1(g) unless it is
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STATE v. ROMERO-GOMEZ
Decision of the Court
issued by an appellate court. As Romero-Gomez points out, moreover,
Arizona courts may be bound by a decision of a federal court interpreting
a matter of federal law. See Cimarron Foothills Cmty. Ass'n v. Kippen, 206
Ariz. 455, 458, ¶ 6 (App. 2003); PLM Tax Certificate Program 1991-92, LP v.
Denton Investments, Inc., 195 Ariz. 210, 212-13, ¶ 12 (App. 1999); First Nat'l
Bank of Ariz. v. Carruth, 116 Ariz. 482, 483 (App. 1977). And in PLM Tax
Certificate Program and Carruth, we cited federal district court decisions (as
well as appellate court decisions) as precedent for the relevant federal-law
principle.
¶8 Assuming for purposes of argument that the Puente
preemption ruling otherwise might have represented a significant change
in the law, cf. Shrum, 220 Ariz. at 120, ¶ 21 (appellate opinion not a
significant change "simply because it is the first to interpret a statute"), the
flaw in Romero-Gomez's argument is that the decision was unpublished.
For that reason, the district court's ruling lacks precedential effect in
Arizona state courts. See 9th Cir. R. 36-3(a) ("Unpublished dispositions and
orders . . . are not precedent"); Ariz. R. Sup. Ct. 111(d) ("party may cite a
decision of a tribunal in another jurisdiction, as permitted in that
jurisdiction"); see also F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1156 (9th Cir. 2010)
(unpublished district court orders not precedential). Because the Puente
preemption decision lacked precedential effect, it does not suffice under
Rule 32.1(g) because it does not represent a "significant change in the law
that . . . would probably overturn" Romero-Gomez's conviction.
¶9 Romero-Gomez also argues that, as a practical matter, the
injunction the Puente court entered would have barred prosecution in her
case. The injunction, however, applied only to the Maricopa County
Sheriff's Office, barring it from investigating or prosecuting specified
violations of A.R.S. §§ 13-2002 and -2009(A)(3) based on documents
submitted during the employment-verification process. See Puente, No. CV-
14-01356-PHX-DGC, 2017 WL 1133012, at *17. Assuming without deciding
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STATE v. ROMERO-GOMEZ
Decision of the Court
that a permanent injunction issued in an unpublished order may constitute
a "significant change in the law" pursuant to Rule 32.1(g), the injunction
here did not absolutely bar an identity-theft prosecution of a defendant by
any other agency based on documents submitted in connection with
employment.
¶10 For these reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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