Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2005-006154-001 The Honorable Jo Lynn Gentry-Lewis, Judge
Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Respondent
Bryon Murphy, Yuma Petitioner In Propria Persona
Presiding Judge Maurice Portley, Judge John C. Gemmill, and Judge Kent E. Cattani delivered the following decision.
¶1 In 2006, Petitioner Byron Murphy pled guilty to armed robbery and the trial court sentenced him to fifteen years' imprisonment. Murphy now seeks review of the summary dismissal of his untimely second petition for post-conviction relief. We review the summary dismissal of a petition for post-conviction relief for abuse of discretion. State v. Watton, 164 Ariz. 323, 325, 793 P.2d 80, 82 (1990). We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).
¶2 In his petition for review, Murphy argues he has newly discovered evidence that shows he was set up by an FBI agent who wanted Murphy imprisoned for a long period of time so he could continue his extramarital affair with Murphy's wife. Murphy also argues he has newly discovered evidence showing that his trial counsel and counsel's wife were "social-friends" with the FBI agent and his wife, something counsel failed to disclose. Murphy argues that had he known either of these pieces of information, he would not have pled guilty.
¶3 For a defendant to be entitled to post-conviction relief based on newly discovered evidence,
(1) [T]he evidence must appear on its face to have existed at the time of trial but be discovered after trial;
(2) [T]he motion must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention;
(3) [T]he evidence must not simply be cumulative or impeaching;
(4) [T]he evidence must be relevant to the case; [and]
(5) [T]he evidence must be such that it would likely have altered the verdict, finding, or sentence if known at the time of trial. State v. Bilke, 162 ...