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State v. Gamez

Court of Appeals of Arizona, Second Division, Department B

September 16, 2013


Not for Publication Rule 111, Rules of the Supreme Court

PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20020991 Honorable Stephen C. Villarreal, Judge

Robert Carrasco Gamez Florence In Propria Persona



¶1 Following a jury trial, petitioner Robert Gamez was convicted of two counts each of attempted first-degree murder, aggravated assault with a deadly weapon, and endangerment. The trial court sentenced him to aggravated, concurrent and consecutive prison terms totaling forty-six years. We affirmed the convictions and sentences on appeal, [1] State v. Gamez, No. 2 CA-CR 2003-0201 (memorandum decision filed Feb. 28, 2006), and denied relief on Gamez's petition for review from the court's denial of his second petition for post-conviction relief, State v. Gamez, No. 2 CA-CR 2011-0308-PR (memorandum decision filed Jan. 27, 2012).[2] After Gamez filed a pro se notice of post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P., appointed counsel filed a notice advising the court he "could find no issues that could be raised" in a petition for post-conviction relief.[3] Gamez then filed a pro se petition, which the court dismissed without holding an evidentiary hearing. Gamez now seeks review of that ruling. "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). We find no such abuse here.

¶2 On review, Gamez raises several claims, summarized as follows: (1) actual innocence; (2) significant change in the law; (3) trial court error; (4) newly discovered evidence; (5) ineffective assistance of trial and first Rule 32 counsel, and; (6) prosecutorial misconduct. Asserting he is disadvantaged because he is a pro se litigant, Gamez asks that we vacate his sentence and remand for new trial; remand for an evidentiary hearing; and order "additional funding to conduct additional testing."[4]

¶3 In its minute entry ruling dismissing Gamez's petition, the trial court identified and addressed the claims he had raised, resolving them in a manner that has permitted review by this court. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). The record before us supports the trial court's ruling.[5] Consequently, we adopt the court's ruling, finding no purpose would be served by restating it in its entirety here. See id. In addition, although the court found Gamez's claim of ineffective assistance of Rule 32 counsel precluded because he could have filed it in his second petition, we additionally note that a non-pleading defendant has no constitutional right to counsel or effective assistance in post-conviction proceedings. Osterkamp v. Browning, 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011). And, to the extent Gamez intended to raise a claim of ineffective assistance of trial counsel, a claim the court did not address, any such claim would be precluded. Gamez could have, and in fact did, raise such a claim in an earlier petition. See Swoopes, 216 Ariz. 390, ¶ 25, 166 P.3d at 953, quoting State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002) ("[S]uccessive [ineffective assistance of counsel] claims 'will be deemed waived and precluded' not only when they previously were raised, but also when they 'could have been raised' in a prior Rule 32 proceeding.").

¶4 Although we grant the petition for review, we deny relief.


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