Opinion
No. 2 CA-CR 2014-0050-PR
08-01-2014
THE STATE OF ARIZONA, Respondent, v. ROBERT JOSEPH MOODY, Petitioner.
COUNSEL Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner
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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR043804
The Honorable Kathleen Quigley, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Petitioner
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Robert Moody seeks review of the trial court's order summarily dismissing his petition for 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). We grant review but deny relief.
¶2 Moody was convicted in 1995 of two counts of first-degree murder and sentenced to death the following year. Our supreme court reversed those convictions, concluding Moody had been denied his right to counsel. State v. Moody (Moody I), 192 Ariz. 505, ¶¶ 23-24, 968 P.2d 578, 582 (1998). Moody was again convicted of both counts of first-degree murder and sentenced to death. State v. Moody (Moody II), 208 Ariz. 424, ¶¶ 15-16, 94 P.3d 1119, 1132 (2004). On appeal, our supreme court affirmed his convictions but vacated the death sentences, concluding he had been sentenced under a procedure found unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002). Moody II, 208 Ariz. 424, ¶¶ 209, 236, 94 P.3d at 1164, 1168. Moody was resentenced to consecutive natural-life prison terms, and this court affirmed those sentences on appeal. State v. Moody, No. 2 CA-CR 2010-0043 (memorandum decision filed Oct. 25, 2012).
¶3 Moody then sought post-conviction relief, filing a petition in which he asserted that the constitutional protections against double jeopardy barred his retrial and that our supreme court had erred in rejecting this claim on appeal by concluding he had not moved for a mistrial based on prosecutorial misconduct during his first trial. He asserted he had, in fact, moved for a mistrial "for prosecutorial and judicial misconduct" seven times during his first trial. Moody additionally claimed the state had improperly used his uncounseled admissions during his first trial at his second trial. He further alleged various instances of prosecutorial and judicial misconduct throughout both his trials. The trial court summarily dismissed Moody's petition, finding his claims precluded pursuant to Rule 32.2(a)(2), because they had been raised and rejected in his second appeal.
The trial court expressly identified only two claims: Moody's claims of double jeopardy and the improvement of the state's case on retrial. It did not separately address Moody's various claims of prosecutorial misconduct. Admittedly, Moody's petition for post-conviction relief is confusing at best, and it is not entirely clear whether he intended his claims of prosecutorial misconduct to stand alone or intended them as support for his double-jeopardy claim. In any event, as we explain, the claims are precluded.
¶4 On review, Moody asserts the trial court erred in finding his claims precluded. His argument, as we understand it, is that his double-jeopardy claim is not precluded because counsel in his first appeal had failed to raise issues of prosecutorial and judicial misconduct due to "counsel's loyalties to the trial judge." But he does not explain why appellate counsel's failure to raise those issues in his first appeal is relevant. He instead states — without citation to authority — that the trial court "had the judicial authority" to correct the supreme court's purported error of fact in his second appeal and therefore could "determine whether [Moody]'s retrial violated double jeopardy." Nothing in Rule 32 permits a petitioner to collaterally attack a previous appellate determination. Moody's double-jeopardy claim was raised and rejected on appeal and therefore is precluded. Moody II, 208 Ariz. 424, ¶¶ 17-23, 94 P.3d at 1132-33; see Ariz. R. Crim. P. 32.2(a)(2).
¶5 Moody does not attempt to identify any other error in the trial court's ruling. He instead merely summarizes his claim that the state was not permitted to improve its case during the second trial. That claim also was raised and rejected on appeal and is precluded. Moody II, 208 Ariz. 424, ¶¶ 24-29, 94 P.3d at 1133-34; see Ariz. R. Crim. P. 32.2(a)(2). And, to the extent Moody has asserted independent claims of prosecutorial misconduct, those claims are precluded because they either were raised or could have been raised on appeal. Moody II, 208 Ariz. 424, ¶¶ 144-87, 94 P.3d at 1154-61; see Ariz. R. Crim. P. 32.2(a)(2), (3). Thus, the trial court did not err in summarily dismissing Moody's petition for post-conviction relief.
¶6 Although we grant review, we deny relief.