Opinion
No. 2 CA-CR 2018-0016-PR
06-05-2018
THE STATE OF ARIZONA, Respondent, v. THOMAS MICHAEL PIERCE, Petitioner.
Thomas Michael Pierce, Florence 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NOT FOR PUBLICATION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
Nos. CR020582 and CR020748
The Honorable D. Douglas Metcalf, Judge
REVIEW GRANTED; RELIEF DENIED
Thomas Michael Pierce, Florence
In Propria Persona
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Brearcliffe and Judge Eppich concurred. ECKERSTROM, Chief Judge:
¶1 Thomas Pierce, formerly known as Lawrence Taylor, seeks review of the trial court's order summarily denying his successive and untimely 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 (App. 2007). We find no such abuse here.
We apply the current version of Rule 32, Ariz. R. Crim. P., as doing so will neither "be infeasible [n]or work an injustice." Ariz. Sup. Ct. Order R-17-0002 (Aug. 31, 2017). --------
¶2 We previously set forth the procedural history of Pierce's case in our 2007 memorandum decision denying relief in his fourth petition for review. State v. Pierce, No. 2 CA-CR 2006-0134-PR, ¶¶ 1-3 (Ariz. App. Jan. 12, 2007) (mem. decision). We see no reason to revisit that history here. Since that decision, Pierce has unsuccessfully sought post-conviction relief at least three additional times, most recently in November 2017.
¶3 In his most recent petition for post-conviction relief, Pierce raised claims of ineffective assistance of trial and Rule 32 counsel, and asserted that May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017), constitutes a significant change in the law pursuant to Rule 32.1(g), and that this "finding" is "newly discovered." The trial court summarily denied his petition, and this petition for review followed.
¶4 On review, Pierce states there is "new case law," which we take as a reassertion that there has a been a significant change in the law that would probably overturn his conviction or sentence for child molestation, and he restates his claims of ineffective assistance of trial and Rule 32 counsel. He argued below that we should vacate his conviction for child molestation in light of the holding in May, 245 F. Supp. 3d at 1162. Assuming arguendo that he has not waived this argument by failing to develop it on review, not only does the current state of the law in Arizona, by which we are bound, differ from the holding in May, but as the trial court correctly determined, we are not bound by federal district court decisions. See State v. Holle, 240 Ariz. 300, ¶¶ 17-19, 36, 41-44, 50 (2016) (supreme court determined statutory scheme of A.R.S. §§ 13-1407(E) and 13-1410 did not violate due process); State v. Smyers, 207 Ariz. 314, n.4 (2004) ("The courts of this state are bound by the decisions of [our supreme] court and do not have the authority to modify or disregard [its] rulings."); Arpaio v. Figueroa, 229 Ariz. 444, ¶ 11 (App. 2012) (decisions of federal district courts concerning state law are not binding on this court).
¶5 And, in regard to Pierce's claims of ineffective assistance of counsel, the trial court correctly noted that untimely, successive post-conviction proceedings, like this one, are limited to claims raised pursuant to Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.2(a), (b), 32.4(a)(2)(A); see also State v. Lopez, 234 Ariz. 513, ¶ 5 (App. 2014). Accordingly, Pierce's claims of ineffective assistance of counsel, which fall within Rule 32.1(a), are precluded. See Ariz. R. Crim. P. 32.2(a), (b). Moreover, non-pleading defendants like Pierce "have no constitutional right to counsel in post-conviction proceedings." See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013). Thus, even had Pierce timely raised his claim of ineffective assistance of Rule 32 counsel, it is not cognizable under Rule 32.
¶6 To the extent Pierce also maintains he is actually innocent, we note that, although he checked the box in his notice of post-conviction relief indicating he was raising such a claim, and he briefly mentioned his innocence in his reply to the state's response to his petition below, he did not present any such claim in his petition. Accordingly, the trial court did not address this claim, and nor do we. See State v. Lopez, 223 Ariz. 238, ¶¶ 6-7 (App. 2009) (trial court not required to address claim raised for first time in reply brief); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (declining to address issues not presented to trial court); see also Ariz. R. Crim. P. 32.9(c)(4)(B)(ii). Similarly, insofar as Pierce argues the original trial court lacked subject matter jurisdiction, a claim he did not raise below, we do not address it. See Ramirez, 126 Ariz. at 468.
¶7 We find no abuse of discretion in the trial court's summary denial of Pierce's most recent Rule 32 petition. Accordingly, we grant review but deny relief.