Opinion
No. 2 CA-CR 2013-0387-PR
02-13-2014
THE STATE OF ARIZONA, Respondent, v. DANIEL DIAZ, Petitioner.
Law Office of Emily Danies, Tucson By Emily Danies Counsel for Petitioner
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Cochise County
No. CR200700013
The Honorable Charles A. Irwin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Law Office of Emily Danies, Tucson
By Emily Danies
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Daniel Diaz seeks review of the trial court's order summarily denying his successive petition for post-conviction relief. 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). Diaz has not met his burden of demonstrating such abuse here.
¶2 Diaz was convicted after a jury trial of possession of a dangerous drug for sale and sentenced to an aggravated, twenty-five-year prison term. we affirmed his convictions on appeal but remanded the case for resentencing. State v. Diaz, 222 Ariz. 188, ¶ 1, 213 P.3d 337, 338 (App. 2009), vacated in part, 224 Ariz. 322, 230 P.3d 705 (2010). Pursuant to the state's petition for review, however, our supreme court vacated the sentencing portion of our decision and affirmed Diaz's original twenty-five-year sentence. Diaz, 224 Ariz. 322, ¶ 18, 230 P.3d at 708.
¶3 Diaz filed a timely notice of post-conviction relief but appointed counsel, despite being granted several extensions of time, failed to file a petition for post-conviction relief. After the trial court dismissed the proceeding with prejudice, Diaz sought review in this court; we granted review but denied relief. State v. Diaz, No. 2 CA-CR 2010-0300-PR (memorandum decision filed Jan. 21, 2011).
¶4 Diaz then initiated a new Rule 32 proceeding and was appointed counsel. Appointed counsel, however, again failed to file a petition for post-conviction relief and the proceeding was dismissed. Diaz sought review in this court; we granted review but denied relief. State v. Diaz, 228 Ariz. 541, ¶ 13, 269 P.3d 717, 721 (App. 2012).
¶5 Diaz filed a new notice of post-conviction relief and current counsel was appointed. His subsequent petition claimed his trial counsel was ineffective in failing to adequately advise him concerning two plea offers by the state. He argued that, based on Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002), he is not precluded from raising the claim in a successive proceeding because he had not personally waived his right to effective trial counsel. He further claimed that the United States Supreme Court's recent decision in 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. The trial court summarily denied relief, and this petition for review followed.
¶6 On review, Diaz repeats his argument that, pursuant to Stewart, his claim of ineffective assistance of counsel is not precluded. Our supreme court determined in Stewart that preclusion based on waiver under Rule 32.2(a)(3) does not apply to rights of "sufficient constitutional magnitude" that "require a knowing, voluntary and intelligent waiver." 202 Ariz. 446, ¶¶ 10, 12, 46 P.3d at 1071. Thus, Diaz reasons, because he did not personally waive his "right to a fair trial through an effective counsel," his failure to previously raise his claim of ineffective assistance of counsel does not constitute waiver and thus is not precluded.
¶7 Diaz's reading of Stewart would mean that no claims of ineffective assistance of counsel are subject to preclusion on waiver grounds. But that plainly is not the law; the exception to preclusion described in Stewart applies to claims of ineffective assistance of counsel only if the "right allegedly affected by counsel's ineffective performance" is of sufficient constitutional magnitude to require personal waiver. Id. ¶ 12. Thus, pursuant to Stewart, a claim of ineffective assistance of trial counsel raised in a successive petition is precluded by waiver—unless the allegations implicate a constitutional right that cannot be waived without a knowing and voluntary waiver entered by the defendant personally. See id. ¶¶ 9, 12. Other than his right to effective assistance of counsel, the only right Diaz identifies as being implicated here is his right to a "fair trial." But a purported violation of the "general due process right of every defendant to a fair trial, without more, does not save that belated claim from preclusion." State v. Swoopes, 216 Ariz. 390, ¶ 28, 166 P.3d 945, 954 (App. 2007). Thus, the trial court did not err in rejecting Diaz's argument based on Stewart.
Because we may affirm on any grounds supported by the record, see State v. Banda, 232 Ariz. 582, n.2, 307 P.3d 1009, 1012 n.2 (App. 2013), we need not address whether the trial court correctly determined that our denial of relief in Diaz's previous Rule 32 review proceeding operated as a "final[] adjudicat[ion] on the merits" of his claims of ineffective assistance of counsel.
¶8 Diaz also repeats his argument that Martinez constitutes a significant change in the law, see Ariz. R. Crim. P. 32.1(g), entitling him to the effective assistance of Rule 32 counsel and that he thus "is not precluded from filing a Rule 32 [proceeding claiming] ineffective assistance of his trial attorney." As we determined in State v. Escareno-Meraz, 232 Ariz. 586, ¶¶ 4, 6, 307 P.3d 1013, 1014 (App. 2013), Martinez "does not alter established Arizona law" that non-pleading defendants, like Diaz, "have no constitutional right to [effective] counsel in post-conviction proceedings." Accordingly, Diaz's claim based on Rule 32.1(g) fails.
¶9 For the reasons stated, although review is granted, relief is denied.