State v. Gonzalez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CARLOS GONZALEZ, Petitioner.
No. 1 CA-CR 14-0818 PRPC
FILED 12-15-2016
Petition for Review from the Superior Court in Maricopa County
Nos. CR2004-022884-001 DT
CR2004-133696-001 DT
The Honorable Margaret R. Mahoney, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Carlos Gonzalez, San Luis
Petitioner Pro Se
STATE v. GONZALEZ
Decision of the Court
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Chief Judge Michael J. Brown joined.
D O W N I E, Judge:
¶1 Carlos Gonzalez petitions for review from the summary
dismissal of a consolidated petition for writ of habeas corpus — filed in two
cases — that the superior court treated as a successive petition for post-
conviction relief. Gonzalez argues the court erred by treating his filing as a
petition for post-conviction relief. He also contends Martinez v. Ryan, __
U.S. __, 132 S. Ct. 1309 (2012), permits him to raise all of the issues asserted
in superior court in an untimely post-conviction relief proceeding.
¶2 We grant review but deny relief. Arizona Rule of Criminal
Procedure 32.3 provides that when a defendant seeks a writ of habeas
corpus in a court that has jurisdiction over him, and the defendant attacks
the validity of his conviction or sentence, the court “shall” transfer the
matter to the court in which the defendant was convicted and/or sentenced.
That court shall, in turn, consider the filing as a petition for post-conviction
relief pursuant to Rule 32. Ariz. R. Crim. P. 32.3.
¶3 Gonzalez’s petition for writ of habeas corpus challenged the
validity of his convictions — asserting numerous claims of error during his
two trials and several claims of ineffective assistance of counsel. As such,
the superior court properly treated Gonzalez’s filing as a successive petition
for post-conviction relief pursuant to Rule 32.3.1
1 The superior court broadly stated that a defendant has no right to
effective assistance of counsel in a post-conviction relief proceeding. A
defendant does have a right to effective assistance of counsel in a post-
conviction “of right” proceeding. State v. Pruett, 185 Ariz. 128, 131 (App.
1995). A Rule 32 “of right” proceeding is available to “[a]ny person who
pled guilty or no contest, admitted a probation violation, or whose
probation was automatically violated based upon a plea of guilty or no
contest.” Rule 32.1. Because Gonzalez’s convictions occurred in the context
2
STATE v. GONZALEZ
Decision of the Court
¶4 Gonzalez’s reliance on Martinez is unavailing. Martinez held
that:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.
Martinez, __ U.S. at __, 132 S. Ct. at 1320. The fact that a defendant may seek
habeas corpus relief in federal court under certain circumstances does not
mean that state courts are required to consider claims raised in untimely
post-conviction proceedings.2
CONCLUSION
¶5 For the reasons stated, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
of jury trials, his first post-conviction relief proceedings were not “of right”
proceedings. Id.
2 All of the issues identified in Gonzalez’s petition could have been
raised on direct appeal or in prior post-conviction relief proceedings and
are therefore precluded. Ariz. R. Crim. P. 32.2(a).
3