State of Arizona v. Ramon Escareno Meraz

FILED BY CLERK
AUG 21 2013
IN THE COURT OF APPEALS COURT OF APPEALS
DIVISION TWO
STATE OF ARIZONA
DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2013-0094-PR
) DEPARTMENT B
Respondent, )
) OPINION
v. )
)
RAMON JUAN ESCARENO-MERAZ, )
)
Petitioner. )
)
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR61723
Honorable Kathleen Quigley, Judge
REVIEW GRANTED; RELIEF DENIED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Respondent
Ramon Juan Escareno-Meraz Tucson
In Propria Persona
K E L L Y, Judge.
¶1 Ramon Escareno-Meraz petitions this court for review of the trial court’s
summary dismissal of his successive notice of post-conviction relief filed pursuant to
Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has
abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.
2007). We grant review but deny relief.
¶2 Escareno-Meraz was convicted after a jury trial of one count of illegally
controlling and/or conducting a criminal enterprise; three counts of unlawful use of a
wire communication to facilitate a narcotics transaction; one count of unlawful offer to
transfer marijuana weighing more than two pounds; one count of conspiracy to possess
for sale, transfer, or transport for sale, and/or sell marijuana weighing more than four
pounds; and one count of unlawful transportation of marijuana for sale weighing more
than two pounds. He was sentenced to aggravated prison terms, including three
consecutive 18.5-year terms. We affirmed his convictions and sentences on appeal. State
v. Escareno-Meraz, No. 2 CA-CR 99-0186 (memorandum decision filed Mar. 29, 2001).
Escareno-Meraz then sought post-conviction relief, which the trial court denied, and this
court denied relief on review. State v. Escareno-Meraz, No. 2 CA-CR 2002-0450-PR
(decision order filed Jul. 30, 2004).
¶3 In February 2013, Escareno-Meraz filed a notice of post-conviction relief
asserting that Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), constituted a
significant change in the law entitling him to raise a claim of ineffective assistance of
Rule 32 counsel. See Ariz. R. Crim. P. 32.1(g); 32.2(b). The trial court summarily
dismissed the notice, concluding Martinez did not alter the longstanding Arizona rule that
a non-pleading defendant “may not assert a claim of ineffective assistance of post-
conviction counsel.”
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¶4 Non-pleading defendants like Escareno-Meraz have no constitutional right
to counsel in post-conviction proceedings; thus, despite the existence of state rules
providing counsel, a claim that Rule 32 counsel was ineffective is not a cognizable
ground for relief in a subsequent Rule 32 proceeding. See State v. Mata, 185 Ariz. 319,
336-37, 916 P.2d 1035, 1052-53 (1996); State v. Krum, 183 Ariz. 288, 291-92 & n.5, 903
P.2d 596, 599-600 & n.5 (1995); Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d
551, 556 (App. 2011); State v. Armstrong, 176 Ariz. 470, 474-75, 862 P.2d 230, 234-35
(App. 1993), overruled on other grounds by State v. Terrazas, 187 Ariz. 387, 390, 930
P.2d 464, 467 (App. 1996). On review, Escareno-Meraz asserts that, in light of Martinez,
we should extend the right to effective assistance of Rule 32 counsel to non-pleading
defendants. In Martinez, the Supreme Court determined:
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.
___ U.S. at ___, 132 S. Ct. at 1320.
¶5 But the Court did not ground its decision in a constitutional right, instead
determining that defendants had an “equitable” right to the effective assistance of initial
post-conviction counsel, and it limited its decision to the application of procedural default
in federal habeas review. Id. at ___, 132 S. Ct. at 1315, 1319-20. Indeed, the Court
expressly stated it was not deciding the question of whether a defendant is entitled to
effective assistance of counsel in the first collateral proceeding in which the defendant
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may assert a claim of ineffective assistance of trial counsel. Id. at ___, 132 S. Ct. at
1315.
¶6 Thus, Martinez does not alter established Arizona law. Escareno-Meraz
additionally suggests that we nonetheless should create a right for non-pleading
defendants to effective representation in Rule 32 proceedings due to the “limited” nature
of federal habeas review.1 Even if we could disregard our supreme court’s determination
that no such right exists, we find no basis to do so. See State v. Sullivan, 205 Ariz. 285,
¶ 15, 69 P.3d 1006, 1009 (App. 2003) (court of appeals may not disregard decisions of
supreme court).
¶7 The trial court did not err in summarily dismissing Escareno-Meraz’s
successive notice of post-conviction relief. Although review is granted, relief is denied.
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
1
Escareno-Meraz asserts in passing that Lockyer v. Andrade, 538 U.S. 63 (2003),
and Bell v. Cone, 535 U.S. 685 (2002), “can only continue to be good law if Martinez is
held applicable to those who go to trial.” Nothing in those decisions supports Escareno-
Meraz’s argument.
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