Opinion
No. 2 CA-CR 2015-0150-PR
07-07-2015
THE STATE OF ARIZONA, Respondent, v. WARREN FRANK STAFFORD, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Heather A. Mosher, Deputy County Attorney, Tucson Counsel for Respondent Harold L. Higgins PC, Tucson By Harold L. Higgins 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.24.
Petition for Review from the superior Court in Pima County
No. CR20003420
The Honorable Paul E. Tang, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Barbara LaWall, Pima County Attorney
By Heather A. Mosher, Deputy County Attorney, Tucson
Counsel for Respondent
Harold L. Higgins PC, Tucson
By Harold L. Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court. --------
¶1 Warren Stafford seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Stafford has not met his burden of demonstrating such abuse here.
¶2 After a bench trial, Stafford was convicted of sexual abuse of a minor and six counts of sexual conduct with a minor. The trial court sentenced him to presumptive, consecutive prison terms totaling 125 years. We affirmed his convictions and sentences on appeal. State v. Stafford, No. 2 CA-CR 2002-0079 (memorandum decision filed July 10, 2003). Stafford then sought post-conviction relief, raising claims of ineffective assistance of trial counsel, newly discovered evidence, and sentencing error. The trial court denied relief after an evidentiary hearing, and we denied relief on review. State v. Stafford, No. 2 CA-CR 2006-0295-PR (memorandum decision filed Mar. 8, 2007). Stafford filed a second notice of post-conviction relief in 2008, and appointed counsel filed a notice stating she had reviewed the record and found no "claims for relief to raise in Rule 32 post-conviction proceedings." The court granted leave for Stafford to file a pro se petition but dismissed the proceeding when he failed to do so.
¶3 In 2012, Stafford again sought post-conviction relief, arguing that "all preceding counsel" had been ineffective for failing to raise issues related to his trial counsel's failure to notify him of a plea offer by the state. He further argued that his trial counsel had been ineffective in failing to present evidence of the victim's pregnancy, and that his "subsequent counsel" had failed to effectively present this claim on review. He argued those claims were not subject to preclusion because he had stated a claim pursuant to Rule 32.1(h) and due to purported "exceptions" to preclusion described in State v. Diaz, 236 Ariz. 361, 340 P.3d 1069 (2014), State v. Bennett, 213 Ariz. 562, 143 P.3d 63 (2006), and Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Stafford repeats his claims and his arguments that those claims are not subject to preclusion. In an untimely proceeding like this one, a defendant may only raise claims pursuant to Rule 32.1(d) through (h). See Ariz. R. Crim. P. 32.4(a). Although Stafford asserts he has raised a claim pursuant to Rule 32.1(h), he is entitled to relief under that provision only if he "demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found [him] guilty of the underlying offense beyond a reasonable doubt." Stafford has not remotely met this standard. Although he identifies evidence he believes his trial counsel should have presented to attack the credibility of the victim, nothing about that evidence would have required the court to reject her testimony that Stafford had repeated sexual contact with her over a period of years. See State v. Cox, 217 Ariz. 353, ¶ 27, 174 P.3d 265, 269 (2007) (credibility of witnesses and weight of evidence questions exclusively for fact-finder).
¶5 Stafford's reliance on Bennett does not aid him here. In that case, our supreme court determined that a defendant who had been represented by the same counsel on appeal and in her first Rule 32 proceeding was not precluded from raising a claim of ineffective assistance of appellate counsel in a second post-conviction proceeding. 213 Ariz. 562, ¶¶ 14-16, 146 P.3d at 67. The court determined the defendant could raise the claim because it "was the first proceeding in which she could raise the ineffective assistance of appellate counsel argument." Id. ¶ 16. But, although Stafford broadly claims all his counsel has been ineffective, he has not identified a claim of ineffective assistance of appellate counsel. And, in any event, he could have raised that argument in his second post-conviction proceeding and failed to do so. And, to the extent Stafford asserts he is entitled to raise a claim of ineffective assistance of post-conviction counsel, he is incorrect. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4, 307 P.3d 1013, 1014 (App. 2013).
¶6 Stafford's reliance on Stewart is also misplaced. There, our supreme court addressed the preclusion of claims under Rule 32.2(a)(3) that were of "'sufficient constitutional magnitude'" to require a knowing, voluntary, and intelligent waiver. State v. Lopez, 234 Ariz. 513, ¶ 7, 323 P.3d 1164, 1166 (App. 2014), quoting Stewart, 202 Ariz. 446, ¶ 1, 46 P.3d at 1068. But, as we noted in Lopez, that issue was limited to preclusion based on wavier pursuant to Rule 32.2(a)(3). The court in Stewart did not address Rule 32.4(a), which "is not based on waiver, but instead on the defendant's timeliness in seeking relief." Id. ¶ 8. When a claim is untimely, as here, "whether the underlying claim is of a sufficient constitutional magnitude to require a knowing, voluntary, and intelligent waiver is immaterial." Id. Thus, even if we agreed with Stafford that he has identified a claim requiring a knowing waiver, that claim cannot be raised in this untimely proceeding. Ariz. R. Crim. P. 32.4(a).
¶7 Finally, Stafford asserts he is entitled to raise his claims pursuant to our supreme court's decision in Diaz. In Diaz, the court determined a defendant whose counsel had failed to file a petition in two previous Rule 32 proceedings was entitled to raise a claim of ineffective assistance of counsel in a third proceeding. 236 Ariz. 361, ¶¶ 3-4, 11, 13, 340 P.3d at 1070-71. That case has no application here. Stafford has already sought post-conviction relief based on ineffective assistance of counsel, and his case was again reviewed by new counsel who found no issues to raise. And, unlike Diaz, Stafford has had the opportunity to file a pro se petition but failed to do so. See id. ¶ 10. A defendant may not file repeated petitions for post-conviction relief merely because he has identified claims he believes his previous counsel should have raised. See id. ¶ 12.
¶8 Although we grant review, we deny relief.