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State v. McKaney

Court of Appeals of Arizona, Second Division

November 7, 2013

The State of Arizona, Respondent,
v.
Victor Lamar McKaney, Petitioner.

         Not for Publication – Rule 111(c); Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Pinal County No. S1100CR95020551 The Honorable Boyd T. Johnson, Judge

M. Lando Voyles, Pinal County Attorney by Ivan S. Abrams, Deputy Attorney, Florence Counsel for Respondent.

Victor McKaney, Douglas In Propria Persona.

Judge Miller authored the decision of the Court, in which Chief Judge Howard and Presiding Judge Vásquez concurred.

MEMORANDUM DECISION

MILLER, Judge

¶1 Petitioner Victor McKaney 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). McKaney has not sustained his burden of establishing such abuse here.

¶2 After a jury trial, McKaney was convicted of first-degree murder and sentenced to imprisonment for his natural life without possibility of parole. This court affirmed his conviction and sentence on appeal. State v. McKaney, No. 2 CA-CR 97-0299 (memorandum decision filed Nov. 13, 1997). In 1997, McKaney apparently filed a notice of post-conviction relief. Appointed counsel filed a petition for post-conviction relief and an extension of time for McKaney to file a supplemental pro se petition. The trial court denied relief, but apparently granted two extensions of time for a pro se petition thereafter. McKaney never filed a pro se petition.

¶3 In March 2013, McKaney filed a pro se pleading entitled "Petition for Post-Conviction Relief." In that petition he raised claims of ineffective assistance of appellate and trial counsel[1] and, relying on State v. Bennett, 213 Ariz. 562, 146 P.3d 63 (2006), objected to the fact that the same attorney had represented him on appeal and in his first Rule 32 proceeding. The trial court summarily denied relief.

¶4 On review, McKaney contends that the trial court abused its discretion in concluding his claim of ineffective assistance of trial counsel was precluded, arguing only that trial counsel was ineffective in "fail[ing] to properly explain to him throughout the merits of the plea offer vis-à-vis going to trial." This claim could have been raised in McKaney's first proceeding, and, as the trial court correctly concluded, is precluded. See Ariz. R. Crim. P. 32.2(a)(3). Because McKaney presents no argument on his remaining claims, we do not address them. See Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain "[t]he reasons why the petition should be granted" and "specific references to the record"); State v. Rodriguez, 227 Ariz. 58, n.4, 251 P.3d 1045, 1048 n.4 (App. 2010) (declining to address argument not raised in petition for review). Therefore, although we grant the petition for review, we deny relief.


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