Opinion
2 CA-CR 2023-0230-PR
03-07-2024
The State of Arizona, Respondent, v. Timothy Francis Henry, Petitioner.
Kristin K. Mayes, Arizona Attorney General By Matthew Eklund, Assistant Attorney General, Tucson Counsel for Respondent John William Lovell, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County No. CR201900007 The Honorable Timothy B. Dickerson, Judge
Kristin K. Mayes, Arizona Attorney General By Matthew Eklund, Assistant Attorney General, Tucson Counsel for Respondent
John William Lovell, Tucson Counsel for Petitioner
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge O'Neil concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Petitioner Timothy Henry seeks review of the superior court's ruling summarily dismissing his successive petition for post-conviction relief, filed pursuant to Rule 33, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Mendoza, 249 Ariz. 180, ¶ 1 (App. 2020). For the reasons stated below, we grant review and relief.
¶2 Pursuant to a plea agreement, Henry was convicted of weapons misconduct and transportation of a narcotic drug for sale. The superior court sentenced him to consecutive, presumptive prison terms totaling fourteen years. Thereafter, Henry sought post-conviction relief, arguing that trial counsel had been ineffective by failing to contest venue, provide an accurate factual basis at the change-of-plea hearing, or request a mitigation hearing. The superior court summarily dismissed the petition, and this court denied review of that decision because Henry failed to offer any meaningful argument as to how the superior court had erred. State v. Henry, No. 2 CA-CR 2021-0064-PR (Ariz. App. Nov. 1, 2021) (mem. decision).
¶3 In December 2021, Henry filed a second notice of post-conviction relief, and he attached a letter suggesting he had received ineffective assistance of Rule 33 counsel. The superior court appointed new counsel for Henry and ordered that "[t]he scope of this new post-conviction relief request is limited to [Henry's] claim that he received ineffective assistance of counsel from his first Rule 33 counsel by that counsel's failure to file a proper petition for review."
¶4 Through his newly appointed counsel, Henry filed a motion to expand the scope of his second Rule 33 petition. He argued that his "letter should not be construed as limiting the scope of the review" and that he would like to "challenge the effectiveness of the assistance of post-conviction counsel in the entirety of post-conviction counsel's representation," including the filing of the Rule 33 petition. The state opposed the request, suggesting that Henry's other claims would be precluded. In December 2022, the superior court denied Henry's motion to expand. The court explained that Henry wanted to assert a claim that counsel had been ineffective in the first Rule 33 "proceeding by not raising additional claims of ineffective assistance of trial counsel" but that he had "not specif[ied] what other acts or omissions by [first Rule 33 counsel] he believe[d] constituted ineffective assistance." The court further noted that additional claims of ineffective assistance of trial counsel were precluded under Rule 33.2(a).
¶5 In April 2023, Henry filed his petition for post-conviction relief, asserting that first Rule 33 counsel had provided ineffective assistance in filing a petition for review. He pointed to this court's memorandum decision, in which we had concluded that Henry's petition for review failed to comply with Rule 33.16. See Henry, No. 2 CA-CR 2021-0064-PR, ¶¶ 4-5. Henry also asserted that the superior court "should not endeavor to determine prejudice by deciding whether its own decision on [his] first post-conviction petition was correct" because first Rule 33 counsel's performance "deprived him of a procedural right that rendered the proceeding fundamentally unfair." He maintained that the only proper remedy was to find that counsel's representation on review was ineffective and to appoint new counsel to prepare a new petition for review. Henry also reurged his argument that additional claims of ineffective assistance of first Rule 33 counsel were not precluded and that the superior court had erred in limiting the scope of his second Rule 33 petition.
¶6 In July 2023, the superior court issued its ruling summarily dismissing Henry's second Rule 33 petition. The court concluded Henry had failed to establish that first Rule 33 counsel "could have filed a petition for review which was likely to have resulted in a reversal of [the superior] court decision." It explained that Henry had provided "no facts or arguments" that first Rule 33 counsel "could or should have raised in the petition for review." This petition for review followed.
¶7 On review, Henry contends the superior court erred by limiting the scope of his second Rule 33 petition to a claim of first Rule 33 counsel's ineffective assistance in filing a petition for review. He argues that "the selection [of] claims of ineffective assistance of counsel can only be made by counsel" and that statements made in the letter attached to his notice cannot be used "to restrict counsel's ability to fully investigate and argue claims of ineffective assistance of first [Rule 33] counsel." Henry further maintains he "cannot overcome the presumption of the effective assistance of counsel" because he was "not permitted to argue the issues that reasonably effective post-conviction counsel would have raised."
¶8 In response, the state points out that it previously thought the superior court had based its decision to limit this proceeding on issue preclusion under Rule 33.2(b). However, the state concedes that "[u]pon further review of the record the trial court's methodology is less clear." The state "recognizes that [Henry] has the right to pursue legal or factual issues other than the ones already adjudicated on their merits (venue, mitigation, and the appeal)." Accordingly, the state requests that, if we grant relief, we remand the case to the superior court "to allow it to consider other non-precluded ineffective assistance claims" of first Rule 33 counsel.
Rule 33.2(b)(1) is inapplicable here because it applies to claims for relief based on Rule 33.1(b) through (h). A claim for ineffective assistance falls under Rule 33.1(a). See State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (describing ineffective assistance of counsel claim as constitutional claim).
¶9 "A pleading defendant is entitled to effective assistance of counsel in his first proceeding for post-conviction relief." Mendoza, 249 Ariz. 180, ¶ 7. Thus, a defendant may file a second notice of post-conviction relief challenging the effectiveness of counsel in the first post-conviction proceeding. Ariz. R. Crim. P. 33.1. And an indigent defendant is entitled to new counsel in that timely filed proceeding. Mendoza, 249 Ariz. 180, ¶ 7. "Otherwise, the right would be 'meaningless' because a defendant without legal training or expertise cannot be expected to properly raise and argue claims of ineffective assistance of counsel." Id. (quoting Osterkamp v. Browning, 226 Ariz. 485, ¶ 20 (App. 2011)).
¶10 Here, as Henry points out, the proper avenue for him to challenge the effectiveness of first Rule 33 counsel was in a second proceeding for post-conviction relief. See Ariz. R. Crim. P. 33.1. Henry's second notice of post-conviction relief was timely filed. See Ariz. R. Crim. P. 33.4(b)(3)(C) (defendant may raise claim of ineffective assistance of Rule 33 counsel in successive Rule 33 proceeding if defendant files notice no later than thirty days after superior court's final order in first proceeding or, if defendant seeks appellate review of that order, no later than thirty days after appellate court issues mandate in that proceeding). Although the letter attached to Henry's notice suggested he wanted to raise a claim of ineffective assistance of first Rule 33 counsel with regard to the filing of a petition for review, it does not appear that Henry intended to limit his petition to that issue. Indeed, he indicated that he planned to raise claims under both Rule 33.1(a) and (e). In addition, Henry filed a motion to expand the scope of his second petition, making plain his intention to raise multiple claims.
¶11 As the superior court pointed out, Henry was precluded from raising claims of ineffective assistance of trial counsel in this second Rule 33 proceeding. See Ariz. R. Crim. P. 33.2(a)(3). However, that does not appear to have been Henry's intent. Henry explained in his motion to expand that he sought to challenge the effectiveness of first Rule 33 counsel in the filing of his Rule 33 petition. Such claims would not be precluded. See Ariz. R. Crim. P. 33.2(b)(2).
¶12 To the extent the superior court limited the scope of this proceeding because Henry had failed to identify other issues of first Rule 33 counsel's ineffectiveness, the rules do not require such specificity before the petition is filed. See Ariz. R. Crim. P. 33.4(b)(3)(C); see also State v. Rosales, 205 Ariz. 86, ¶ 9 (App. 2003) (notice did not set forth "exhaustive list" of claims to be raised in petition but "merely noted" that claim of ineffective assistance might be raised). Indeed, in his notice, Henry requested the appointment of counsel, presumably to help him identify and argue additional claims of ineffective assistance of first Rule 33 counsel. See Mendoza, 249 Ariz. 180, ¶ 7; cf. State v. Petty, 225 Ariz. 369, ¶ 14 (App. 2010) (asking for appointment of counsel to evaluate claim of ineffective assistance of previous, of-right counsel sufficient to avoid summary dismissal of notice). Accordingly, the court erred by limiting the scope of this proceeding to a claim of first Rule 33 counsel's ineffectiveness in filing a petition for review. See State v. Woody, 173 Ariz. 561, 563 (App. 1992) (abuse of discretion includes exercise of discretion that is "manifestly unreasonable, exercised on untenable grounds or for untenable reasons").
¶13 Henry also argues that the superior court erred by dismissing his second Rule 33 petition based on first Rule 33 counsel's ineffectiveness in filing a petition for review. He maintains the court applied "an incorrect standard for determining prejudice."
¶14 However, because it is not clear how this argument would have affected Henry's other claims of ineffective assistance of first Rule 33 counsel, we decline to address it at this point. Indeed, when faced with additional claims of ineffective assistance, the superior court may choose to grant an evidentiary hearing. See Ariz. R. Crim. P. 33.13. We therefore vacate the court's summary dismissal of Henry's second Rule 33 petition and remand the matter for Henry to file an amended, second Rule 33 petition encompassing his additional claims of ineffective assistance of first Rule 33 counsel.
¶15 Accordingly, we grant review and relief. We remand this matter for further proceedings consistent with this decision.