Opinion
No. 2 CA-CR 2020-0177-PR
10-20-2020
THE STATE OF ARIZONA, Respondent, v. DAVID ALAN CROSS, Petitioner.
David A. Cross, Safford In Propria Persona
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2013456885001DT
The Honorable Erin O'Brien Otis, Judge
REVIEW GRANTED; RELIEF DENIED
David A. Cross, Safford
In Propria Persona
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred. ECKERSTROM, Judge:
¶1 Petitioner David Cross seeks review of the trial court's order dismissing his petition for post-conviction relief, filed in 2019 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 (App. 2007). Cross has not sustained his burden of establishing such abuse here.
Our supreme court amended the post-conviction relief rules, effective January 1, 2020. Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). "Because it is neither infeasible nor works an injustice here, we cite to and apply the current version of the rules." State v. Mendoza, 249 Ariz. 180, n.1 (App. 2020) ("amendments apply to all cases pending on the effective date unless a court determines that 'applying the rule or amendment would be infeasible or work an injustice'" (quoting Ariz. Sup. Ct. Order R-19-0012)). --------
¶2 After a jury trial, Cross was convicted of one count each of possession of a dangerous drug and possession of drug paraphernalia. The trial court sentenced him to enhanced, concurrent prison terms, the longest of which was ten years. This court affirmed his conviction and sentence on appeal. State v. Cross, No. 1 CA-CR 15-0112 (Ariz. App. May 31, 2016) (mem. decision). Cross sought and was denied post-conviction relief in three previous proceedings. This court granted petitions for review, but denied relief in two of those proceedings.
¶3 In September 2019, Cross filed another notice of post-conviction relief and argued in his petition that he was entitled to relief under Rule 32.1(h), contending "[n]o reasonable juror would convict the petitioner when presented with all the evidence." He argued the trial court allowed prosecutorial misconduct, erred in its evidentiary rulings, and allowed or committed "multiple constitutional violations." The trial court summarily denied relief.
¶4 On review, Cross again asserts claims of prosecutorial misconduct, contends trial counsel was ineffective, argues the trial court's ruling is "factually unreasonable" and "results in a Fundamental miscarriage as a matter of law," and maintains the court abused its discretion in rejecting his claim of actual innocence. But we agree with the court that Cross's constitutional claims are precluded and untimely. See Ariz. R. Crim. P. 32.2(a)(2), (3), 32.4(b)(3)(A). His claim of actual innocence is exempt from some of the grounds for preclusion, see Ariz. R. Crim. P. 32.2(b), but was rejected in a previous proceeding. The claim is therefore precluded pursuant to Rule 32.2(a)(2) and (b). See also State v. Little, 87 Ariz. 295, 304 (1960) (doctrine of res judicata generally applies in criminal cases).
¶5 We grant the petition for review, but we deny relief.