Opinion
No. 2 CA-CR 2019-0094-PR
07-17-2019
THE STATE OF ARIZONA, Respondent, v. ISMAEL PADILLA-CONTRERAS, Petitioner.
Ismael Padilla-Contreras, Buckeye In Propria Persona
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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e).
Petition for Review from the Superior Court in Pima County
No. CR20083427
The Honorable D. Douglas Metcalf, Judge
REVIEW GRANTED; RELIEF DENIED
Ismael Padilla-Contreras, Buckeye
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.
STARING, Presiding Judge:
¶1 Ismael Padilla-Contreras seeks review of the trial court's order summarily dismissing his notice of and petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Padilla-Contreras has not shown such abuse here.
¶2 After a jury trial, Padilla-Contreras was convicted of two counts of first-degree felony murder, attempted first-degree murder, and aggravated assault. The trial court sentenced him to natural life terms for both felony murder convictions, to be served concurrently with prison terms for his other convictions. We affirmed his convictions and sentences on appeal. State v. Padilla-Contreras, No. 2 CA-CR 2011-0004 (Ariz. App. Feb. 17, 2012) (mem. decision).
¶3 Padilla-Contreras filed a notice of post-conviction relief in August 2012, and the trial court appointed counsel. The court dismissed that petition a year later because no petition had been filed. At Padilla-Contreras's request, however, the court later reinstated the proceeding, directing counsel "to file a Rule 32 motion or an Anders brief no later than October 28, 2013." Counsel then filed a petition stating she had reviewed the record but found "no issues for review." The court then set a due date for Padilla-Contreras to file a pro se petition. When no such petition was filed, the court dismissed the proceeding in December 2013.
¶4 In January 2019, Padilla-Contreras filed a notice of and petition for post-conviction relief asserting his Rule 32 counsel had never contacted him and he had only recently discovered she had not filed "an appeal brief" or "no-merit letter," violating his right to effective counsel. He also suggested his trial counsel had been ineffective for failing to conduct fingerprint or DNA testing, or to raise at trial that he had been kidnapped, had agreed only to transport marijuana, and "did not know of anything else going on." The trial court summarily dismissed the proceeding, observing that Rule 32 counsel had filed a notice that she had
found no claims to raise in a Rule 32. The court also noted that Padilla-Contreras had not identified any newly discovered evidence and could not raise a claim of ineffective assistance of trial counsel in an untimely proceeding. This petition for review followed.
¶5 On review, Padilla-Contreras first complains that his Rule 32 counsel was ineffective because she had not contacted him during the Rule 32 proceedings to tell him she intended to file an "Anders Brief" and, thus, deprived him of the opportunity to file a pro se petition. As a non-pleading defendant, Padilla-Contreras is not entitled to raise a claim of ineffective assistance of Rule 32 counsel. State v. Escareno-Meraz, 232 Ariz. 586, ¶¶ 4-6 (App. 2013) (non-pleading defendants "have no constitutional right to counsel in post-conviction proceedings"). And, in any event, a claim of ineffective assistance of counsel falls within Rule 32.1(a) and, as such, cannot be raised in an untimely proceeding like this one. See Ariz. R. Crim. P. 32.4(a)(2)(A); State v. Petty, 225 Ariz. 369, ¶ 11 (App. 2010) (ineffective assistance claim raised under Rule 32.1(a)). Padilla-Contreras additionally asserts his trial counsel was ineffective. But, again, this claim cannot be raised in an untimely proceeding. The trial court did not err in summarily dismissing Padilla-Contreras's notice of and petition for post-conviction relief.
¶6 We grant review but deny relief.