Opinion
2 CA-CR 2023-0203-PR
01-11-2024
The State of Arizona, Respondent, v. Montez Lavell Wright III, Petitioner.
Montez Lavell Wright III, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court.
Petition for Review from the Superior Court in Maricopa County No. CR2017005699001DT The Honorable Danielle Viola, Judge. REVIEW GRANTED; RELIEF DENIED.
Montez Lavell Wright III, Tucson In Propria Persona
Judge Gard authored the decision of the Court, in which Chief Judge Vasquez and Presiding Judge Eppich concurred.
MEMORANDUM DECISION
GARD, Judge
¶1 Petitioner Montez Wright seeks review of the trial court's order summarily dismissing his successive post-conviction relief proceeding, filed under Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Wright has not demonstrated such abuse here.
¶2 After a jury trial, Wright was convicted of two counts of first-degree murder, two counts of credit card theft, and one count each of burglary, theft of means of transportation, attempted burglary, fraudulent schemes and artifices, attempted fraudulent schemes and artifices, aggravated taking the identity of another, and computer tampering. The trial court sentenced him to consecutive prison terms of natural life for the murders and a combination of concurrent prison terms on the remaining counts. This court affirmed his convictions and sentences on appeal. State v. Wright, No. 1 CA-CR 19-0251 (Ariz. App. May 28, 2020) (mem. decision).
¶3 Wright sought post-conviction relief in August 2020, raising claims of ineffective assistance of trial counsel, "prosecutorial misconduct," and a Brady violation based on the state's suppression of favorable evidence. The trial court summarily dismissed the proceeding, concluding that Wright had not demonstrated counsel performed deficiently or that he was prejudiced and finding all other claims precluded under Rule 32.2(a)(3). Wright filed a petition for writ of habeas corpus in March 2023, which the court deemed a petition for post-conviction relief. The court summarily dismissed that proceeding, finding Wright's claims precluded or untimely.
Brady v. Maryland, 373 U.S. 83 (1963).
¶4 In September 2023, Wright filed another notice requesting post-conviction relief. In that notice, he raised a claim of appellate counsel's ineffectiveness based on counsel's failure to raise a prosecutorial misconduct claim on direct appeal. The trial court summarily dismissed this proceeding. This petition for review followed.
¶5 On review, Wright contends the prosecutor improperly argued in closing that cell phone records placed Wright at the scene of the murders. He further contends trial counsel performed ineffectively by failing to object to the argument and appellate counsel performed ineffectively by failing to raise the issue on appeal.
¶6 The trial court correctly found Wright's prosecutorial misconduct claim precluded because he either had raised or could have raised it in a previous post-conviction proceeding. See Ariz. R. Crim. P. 32.2(a)(2), (3). Wright's ineffective assistance of appellate counsel claim is similarly precluded because he could have raised it in his previous post-conviction proceedings but failed to do so. See Ariz. R. Crim. P. 32.2(a)(3); State v. Swoopes, 216 Ariz. 390, ¶ 25 (App. 2007) (successive ineffective assistance claims deemed waived and precluded not only when previously raised but also when they could have been raised in prior Rule 32 proceeding). Wright's ineffective assistance of trial counsel claim is also precluded because it was raised and rejected in his 2020 post-conviction proceeding. See Ariz. R. Crim. P. 32.2(a)(2).
Moreover, Wright did not raise his ineffective assistance of trial counsel claim in his notice requesting post-conviction relief. Accordingly, he cannot now assert it on review. See Ariz. R. Crim. P. 32.16(c)(2)(B) (requiring petition for review to contain "a statement of issues the trial court decided that the defendant is presenting for appellate review"); State v. Vera, 235 Ariz. 571, ¶ 8 (App. 2014) (court of appeals does not consider issues on review that have not been considered and decided by the trial court).
¶7 We grant review but deny relief.