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State v. Lopez-Millan

Court of Appeals of Arizona, Second Division

December 13, 2013

The State of Arizona, Respondent,
Alfonso Lopez-Millan, Petitioner

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Petition for Review from the Superior Court in Maricopa County No. CR2007172912004DT The Honorable Paul J. McMurdie, Judge

Alfonso López-Millan, San Luis In Propria Persona

Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.


KELLY, Presiding Judge:

¶1 Alfonso López-Millan petitions this court for review of the trial court's order summarily dismissing his successive notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, 4, 166 P.3d 945, 948 (App. 2007). López-Millan has not met his burden of demonstrating such abuse here.

¶2 López-Millan was convicted after a jury trial of three counts each of kidnapping and theft by extortion, and one count each of aggravated assault and smuggling. He was sentenced to concurrent and consecutive mitigated prison terms totaling twenty-six years. We affirmed his convictions and sentences on appeal. State v. Lopez-Millan, No. 1 CA-CR 09-0048 (memorandum decision filed Nov. 17, 2009).

¶3 López-Millan filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but had found "no colorable claims which can be raised" in a postconviction proceeding. López-Millan then filed a form pro se petition, noting that he does not speak English and checking boxes indicating he had been denied his constitutional right to competent counsel and his sentence was improper. The state responded that the petition should be dismissed for failure to comply with Rule 32.5. López-Millan argued in reply that he had been denied access to a law library and that a prison paralegal who had prepared his original petition had refused to assist him in preparing a reply. The trial court summarily dismissed López-Millan's petition on July 3, 2012, stating he had "failed to raise a colorable claim for relief."

¶4 López-Millan did not seek review of that ruling in this court. He instead filed a notice of post-conviction relief asserting that he was raising a claim of ineffective assistance of counsel, his failure to timely file a notice of post-conviction relief was without fault on his part, and there had been a significant change in the law. He stated that his claims "did not accrue" until the trial court issued its July 3 order, citing Osterkamp v. Browning, 226 Ariz. 485, 250 P.3d 551 (App. 2011), his counsel in his first post-conviction proceeding had been ineffective for failing to present claims of ineffective assistance of trial counsel, citing Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309 (2012), and he had been denied "due process of law/access to courts" during his first proceeding. The trial court summarily dismissed the notice, stating that Martinez did not apply or "provide relief at the state court level" and López-Millan had failed to "assert[] substantive grounds which bring him within the provisions of the Rule" or to "state a claim for which relief can be granted in an untimely or successive Rule 32 proceeding."

¶5 On review, López-Millan asserts without elaboration that the trial court's summary dismissal of his notice denied "his right to petition the courts for redress, " his right to due process, and his right to equal protection under the law. To the extent López-Millan intends these statements as arguments separate from those raised in the remainder of his petition for review, he does not develop them in any meaningful way and we do not address them. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives claim on review).

¶6 López-Millan also asserts that the rejection of his first petition for post-conviction relief was due to ineffective assistance of his Rule 32 counsel, his lack of access to legal research materials, and the conduct of the paralegal who assisted him with the preparation of that petition. He reasons, therefore, that the claims raised in his new notice did not "accru[e]" until the trial court had dismissed his first petition and that his notice was thus timely because it had been filed within thirty days of the court's ruling. And he asserts the trial court erred in summarily dismissing his notice because he provided sufficient information about his claims as required by Rule 32.2(b).

¶7 The timeliness of López-Millan's second notice of post- conviction relief, however, is not the relevant issue. His claim that he lacked access to legal resources during his first proceeding is fundamentally a collateral attack on the outcome of that proceeding. But López-Millan did not seek review pursuant to Rule 32.9(c) of the trial court's dismissal of his first petition. And, in any event, those claims are not cognizable under Rule 32.

¶8 Except for a claim that a person is being held beyond the expiration of his or her sentence, see Ariz. R. Crim. P. 32.1(d), Rule 32 is limited to claims concerning the propriety of a defendant's conviction or sentence and does not encompass claims of constitutional violations occurring during a defendant's incarceration. See Ariz. R. Crim. P. 32.1; State v. Davis, 148 Ariz. 62, 64, 712 P.2d 975, 977 (App. 1985) (challenges to calculation credit "are not cognizable under Rule 32 unless they result in the defendant remaining in custody when he should otherwise be free"). Thus, López-Millan's claims concerning his lack of access to legal resources and the conduct of his paralegal during his first proceeding are not cognizable claims in his second proceeding. And his concern about when those claims "accru[ed]" is not relevant.

¶9 A claim that there has been a significant change in the law, however, generally may be raised in a successive proceeding. Ariz. R. Crim. P. 32.1(g), 32.2(b). But this court has rejected the proposition that Martinez constitutes a significant change in the law entitling a non-pleading defendant, like López-Millan, to raise a claim of ineffective assistance of Rule 32 counsel. State v. Escareno-Meraz, 232 Ariz. 586, ¶ 6, 307 P.3d 1013, 1014 (App. 2013). We determined in Escareno-Meraz that Martinez was "limited . . . to the application of procedural default in federal habeas review" and did not conclude there was a constitutional right to effective postconviction counsel. 232 Ariz. 586, ¶ 5, 307 P.3d at 1014. Thus, we concluded the Supreme Court's decision "does not alter established Arizona law" that "[n] on-pleading defendants . . . have no constitutional right to counsel in post-conviction proceedings; thus, ...

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