Opinion
2 CA-CR 2012-0293-PR
01-09-2013
THE STATE OF ARIZONA, Respondent, v. FRANCISCO JAVIER LUNA, Petitioner.
Law Office of Richard Luff, PLLC By Richard Luff Attorney for Petitioner
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20062027
Honorable Howard Hantman, Judge
REVIEW GRANTED; RELIEF DENIED
Law Office of Richard Luff, PLLC
By Richard Luff
Attorney for Petitioner
Tucson
KELLY, Judge. ¶1 Petitioner Francisco Luna seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Luna has not sustained his burden of establishing such abuse here. ¶2 Pursuant to a plea agreement, Luna, a permanent resident alien, was convicted of attempted transportation of marijuana for sale. The trial court imposed a presumptive sentence of 3.5 years' imprisonment. Approximately two years later, Luna, who ultimately was deported as a result of his conviction, initiated a proceeding for post-conviction relief, arguing in his petition that his Sixth Amendment right to counsel had been violated because his defense attorney had not advised him of the immigration consequences of his guilty plea, as required by Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473 (2010). He maintained that counsel had been ineffective in failing to advise him properly and that, although his claim was untimely, it could be raised pursuant to Rule 32.1(g). After an evidentiary hearing, the trial court denied relief, noting that in State v. Poblete, 227 Ariz. 537, 260 P.3d 1102 (App. 2011), this court had decided Padilla does not apply retroactively. ¶3 On review, Luna argues we should "reverse" our decision in Poblete, maintaining that we failed to consider that the United States Supreme Court remanded two Fifth Circuit cases for review in light of Padilla and that the Court has "directed retroactive application of Padilla in subsequent rulings" or, alternately, "will soon decide" whether Padilla is retroactively applicable. ¶4 We decline Luna's invitation to reconsider our conclusion in Poblete. Furthermore, we reject his claim that the two remand orders he cites indicate the Supreme Court has deemed Padilla applicable retroactively. See Chapa v. United States, __ U.S. __, 130 S. Ct. 3504 (2010); Santos-Sanchez v. United States, __ U.S. __, 130 S. Ct. 2340 (2010). In each order, the Court summarily vacated the lower court's decision and ordered it to reconsider its decision in light of Padilla. The Court did not state remand was required because Padilla is retroactively applicable, and Luna has cited no authority to suggest we can infer anything from these orders about an issue not yet decided by the Court. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "the reasons why the petition should be granted"); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."). And, as Luna concedes, the Supreme Court has not yet ruled in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted __ U.S. __, 132 S. Ct. 2101 (Apr. 30, 2012). To the extent Luna asks that we stay our decision until the Court decides Chaidez, we decline to do so. ¶5 Therefore, although we grant the petition for review, relief is denied.
Our supreme court denied review of this court's decision in Poblete on February 15, 2012.
______________________________
VIRGINIA C. KELLY, Judge
CONCURRING: _______________
GARYE L. VÁSQUEZ, Presiding Judge
_______________
PHILIP G. ESPINOSA, Judge