November 19, 2013
The State of Arizona, Respondent,
Jerry Lewis Angton, Petitioner.
Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Petition for Review from the Superior Court in Maricopa County No. CR2003040453001SE The Honorable Sherry K. Stephens, Judge
Jerry Lewis Angton, Florence In Propria Persona
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 Petitioner Jerry Angton seeks review of the trial court's summary dismissal of his petition for habeas corpus relief, which the court treated as a successive notice of post-conviction relief pursuant to Rule 32.3, Ariz. R. Crim. P. We grant review but, for the following reasons, we deny relief.
¶2 Pursuant to a plea agreement, Angton was convicted of two counts of sexual assault, found to be dangerous-nature offenses pursuant to former A.R.S. § 13-604, 1993 Ariz. Sess. Laws, ch. 255, § 7, and two counts of attempted sexual assault, all committed in November 1994. The trial court sentenced him to enhanced, consecutive, and partially aggravated twelve-year prison terms for the sexual assault convictions, to be followed by concurrent terms of lifetime probation for the attempted sexual assaults.
¶3 In his petition below, Angton argued (1) lifetime probation had not been a statutorily authorized disposition for his attempted sexual assault convictions under the rule announced in State v. Peek, 219 Ariz. 182, ¶¶ 12-20, 195 P.3d 641, 643-44 (2008); (2) the trial court should have sentenced him to concurrent, rather than consecutive prison terms for his sexual assault convictions; (3) the execution of his sentences as "flat-time" terms of imprisonment, without eligibility for early release, is inconsistent with the rule announced in State v. Tarango, 185 Ariz. 208, 212, 914 P.2d 1300, 1304 (1996); (4) because he was unaware of the law as stated in Tarango and Peek, his plea "was not knowing[ly] and intelligently made"; (5) his sentences violate the prohibition against double jeopardy; and (6) his trial counsel rendered ineffective assistance during the plea process.
¶4 The trial court identified these claims as cognizable under Rule 32.1(a) and, noting that this was Angton's "third request for post-conviction relief, " found the claims precluded. See Ariz. R. Crim. P. 32.2(a)(3) (preclusion of claims "waived at trial, on appeal, or in any previous collateral proceeding"); 32.4(a) (untimely notice "may only raise claims pursuant to Rule 32.1(d), (e), (f), (g) or (h)"). Relying on State v. Shrum, 220 Ariz. 115, 203 P.3d 1175 (2009), the court also rejected any argument that Peek constituted a significant change in the law that would support a non-precluded claim for relief under Rule 32.1(g). The court thus found Angton had "fail[ed] to state a claim for which relief can be granted in an untimely or successive Rule 32 proceeding, " denied his petition for writ of habeas corpus and dismissed the Rule 32 proceeding. The court subsequently denied Angton's motion for reconsideration of that ruling, and this petition for review followed.
¶5 On review, Angton contends the trial court abused its discretion in construing his petition for a writ of habeas corpus as a notice of post-conviction relief and then dismissing his claims without benefit of a Rule 32 petition prepared by counsel, in "violat[ion of his] state and federal constitutional rights to due process." Although his arguments are not entirely clear, he asserts the dismissal was improper because he had alleged claims "grounded in a newly announced rule of constitutional law which, if applied to [his] case[, ] probably would alter the sentences imposed" and because the court "denied some claims as being precluded, denied some claims as being cognizable, and denied some claims on the merits-all without presentation of a formal Petition." We review a trial court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here.
¶6 As an initial matter, Angton is mistaken that the trial court "denied some claims as being precluded . . . and denied some claims on the merits." As addressed above, the court found all of Angton's claims precluded, as expressed in its conclusion that none of them could be raised in a successive Rule 32 proceeding. In asserting the court "denied some claims as being cognizable, " Angton appears to have misunderstood the court's statement that he had "raised six cognizable claims for post-conviction relief." All of Angton's claims fall within the recognized - or "cognizable"-ground for post-conviction relief in Rule 32.1(a), but they are precluded because Angton failed to raise them in a first, timely Rule 32 proceeding. See Ariz. R. Crim. P. 32.2(a)(3).
Resolution of Habeas Petition under Rule 32
¶7 Rule 32.3 provides that a defendant's application for a writ of habeas corpus "raising any claim attacking the validity of his or her conviction or sentence" shall be treated "as a petition for relief under this rule and the procedures of this rule shall govern." The trial court applied this rule correctly in resolving Angton's claims under Rule 32, although it treated Angton's habeas petition as a notice of post-conviction relief rather than as a Rule 32 petition. We cannot say the court abused its discretion in doing so.
¶8 Ordinarily, a Rule 32 proceeding "is commenced by timely filing a notice of post-conviction relief." Ariz. R. Crim. P. 32.4(a). Under Rule 32.2(b), a successive or untimely notice of postconviction relief is subject to summary dismissal unless it sets forth a non-precluded claim and "meritorious reasons . . . substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner." We have observed that this rule serves a "gate-keeping function" by directing courts "to dismiss facially non-meritorious notices" of post-conviction relief. State v. Harden, 228 Ariz. 131, ¶ 11, 263 P.3d 680, 683 (App. 2011). Rule 32.6(c) similarly provides for a court to summarily dismiss a petition for post-conviction relief if it determines, "[o]n reviewing the petition, response, reply, files and records, " that a defendant has raised only precluded or non-colorable claims.
¶9 Here, the trial court was able to determine, based on Angton's habeas petition alone, that all of his claims were precluded by his failure to raise them in his first Rule 32 proceeding. The court correctly concluded Angton's citation to Peek did not provide a "meritorious reason, " as required by Rule 32.2(b), for finding an exception to preclusion under Rule 32.1(g), because Peek did not constitute a "significant change in the law" that might entitle him to relief. See Shrum, 220 Ariz. 115, ¶¶ 21-23, 203 P.3d at 1180 (first appellate opinion interpreting statute is not significant change in the law for purpose of Rule 32.1(g)). We find no abuse of discretion in the court's consideration of Angton's petition for habeas relief under Rule 32 or in dismissing his claims at this stage of the proceedings.
¶10 Moreover, Angton "is not entitled to habeas corpus relief because he does not allege any facts which show that he is entitled to immediate release from custody." Brown v. State, 117 Ariz. 476, 477, 573 P.2d 876, 877 (1978). Similarly, with respect to his claim pursuant to Tarango, Angton has not alleged facts suggesting he "is being held in custody after the sentence imposed has expired" under Rule 32.1(d), a claim that would not be subject to preclusion in an untimely or successive petition. See Ariz. R. Crim. P. 32.2(b). 
Preclusion of Ineffective Assistance Claims
¶11 For the first time on review, Angton suggests he should not be precluded from raising his untimely claim that counsel was ineffective in negotiating his plea agreement because the Supreme Court's decisions in Missouri v. Frye, ___U.S.___, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, ___U.S.___, 132 S.Ct. 1376 (2012), constitute a significant change in the law, under Rule 32.1(g), relevant to his claims. Our review is limited to those "issues . . . decided by the trial court, " Ariz. R. Crim. P. 32.9(c)(1)(ii), and we do not consider issues raised for the first time on review, State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980). We note, however, that Arizona courts have long recognized a pleading defendant's right to effective representation, see, e.g., State v. Anderson, 147 Ariz. 346, 352, 710 P.2d 456, 462 (1985), and these cases do not appear to mark a "transformative event" with respect to Angton's claims, see Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d at 1178.
¶12 For the foregoing reasons, although we grant review, we deny relief.