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THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
STATE OF ARIZONA,
RUTH A. WILLINGHAM,
1 CA-CV 12-0236
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate
Appeal from the Superior Court in Maricopa County
Cause No. LC2011-000703-001
The Honorable Edward W. Bassett, Judge
In Propria Persona
Thomas C. Horne, Attorney General
By Joseph D. Estes, Assistant Attorney General
And Daniel P. Schaack, Assistant Attorney General
Attorneys for Respondent/Appellee
K E S S L E R, Judge
Petitioner/Appellant Christina Acker (“Acker”) appeals
the superior court’s order dismissing her petition for a writ of
For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Acker, an Arizona inmate, filed several documents in
the superior court including a “Petition for Writ of Habeas
Corpus Ad Testificandum” and a “Memorandum of Law in Support of
[Preliminary Injunction (“PI”)]” against the State of Arizona.
In her motion for TRO and PI, Acker claimed she was being 1)
denied access to her legal records due to prison policies; 2)
denied access to “legal mail, regular mail, and inter-office
mail”; and 3) retaliated against by prison personnel because of
her continued litigation against them.
In her motion, Acker
requested the State either “[re-try] the petitioner, make the
[legal documents] available, or release petitioner.”
Acker originally filed these documents under the case
number for the criminal matter for which she was convicted.
Several weeks later, the superior court issued a minute entry
order referring to the action as a “Writ of Habeas Corpus,”
assigning it a new case number, ordering the State to respond,
and assigning the action to Judge McClennan.
petition should be treated as a special action in that it sought
superior court should dismiss it for several reasons.
filed a motion for extension of time for which to file a reply
Although Acker eventually filed a reply to the State, the court
stated in its minute entry that “[n]o reply or response to the
Motion to Dismiss has been filed by Petitioner,” which indicated
[T]he Petition sets forth claims that were previously
raised and decided against Petitioner . . . .
Superior Court’s dismissal of that action was affirmed
by the Arizona Court of Appeals, Division One, in
Petitioner’s claims are barred by the doctrine of res
judicata and/or claim preclusion.
Acker timely appealed.
We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101 (Supp. 2012).
failing to address the merits of her claims and finding that her
claims were barred by res judicata;
2) failing to consider her
petition as a petition for writ of habeas corpus when all of the
issues she raised would either directly or indirectly affect the
length of her sentence;
3) preventing her from requesting a
change of judge pursuant to Arizona Rule of Civil Procedure
42(f); and 4) failing to consider her response to the State’s
motion to dismiss before making its ruling.1
properly dismissed Acker’s claims based on res judicata, 2) a
petition for habeas corpus was not the appropriate vehicle for
relief, and 3) Acker’s petition should have been treated as a
special action, over which the court could have properly denied
Acker’s claims are
Acker’s allegations all center on her claim that she
was being denied access to her legal documents and her mail, and
thus, she was being denied access to the courts.
in her opening brief that “[a]ll of the substantive issues in
the case are employed to stop access to documents and ultimately
to all courts.”
“Denial or undue restriction of reasonable
guaranteed to state prison inmates by the Fourteenth Amendment
to the United States
Salstrom v. State, 148
Ariz. 382, 385, 714 P.2d 875, 878 (App. 1986).
Acker also argues for the first time on appeal that the
respondents denied her medical treatment and forced her to work
despite her medical issues.
This Court “generally [does] not
consider issues, even constitutional issues, raised for the
first time on appeal.”
Englert v. Carondelet Health Network,
199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). We will
not address this claim.
When an appellant claims she “is being denied access
to the courts, release from prison pursuant to a writ of habeas
corpus is not the appropriate relief.
Rather, a special action
Id. at 384, 714 P.2d at 877; see also Bustamonte
v. Ryan, 175 Ariz. 327, 328, 856 P.2d 1205, 1206 (App. 1993)
access to a law library is to seek special action relief in the
nature of the common law writ of mandamus”);
Knight v. Superior
Court (Ybarra), 161 Ariz. 551, 553-54, 779 P.2d 1290, 1292-93
(App. 1989) (“It is well established in Arizona that, when an
inmate is denied access to the courts . . . the appropriate
remedy is to seek special action relief, which encompasses the
common law writ of mandamus.”).
courts affects the length of her sentence, habeas corpus relief
person unlawfully committed, detained, confined or restrained of
his liberty, under any pretense whatever, may petition for and
prosecute a writ of habeas corpus to inquire into the cause of
such imprisonment or restraint.”
The purpose “of habeas corpus
is to test the legality and correctness of a prisoner’s judgment
Griswold v. Gomes, 111 Ariz. 59, 62, 523 P.2d
490, 493 (1974).
Habeas corpus is not an appropriate method to
seek any remedy short of absolute release; thus, it is not the
proper means to obtain a remedy for denial of access to the
Long v. Ariz. Bd. of Pardons and Parole, 180 Ariz. 490,
494, 885 P.2d 178, 182 (App. 1994).
absolute release, but rather a court order that ADOC modify its
policies regarding inmate mail and the storage of and access to
In her motion for TRO and PI, Acker asserted
that the “State must either [re-try] the petitioner, make [legal
mentions the possibility of release if she cannot obtain her
legal documents, we do not see that as a legal challenge to the
legality of her confinement.
other than absolute release, a writ of habeas corpus was not the
proper method to obtain relief.
Furthermore, contrary to Acker’s assertion, resolution
of her claims would not affect the length of her sentence, and
even if it did, habeas corpus was still not the appropriate
vehicle for relief.
See Escalanti v. Dep’t of Corr., 174 Ariz.
526, 527 n.1, 851 P.2d 151, 152 n.1 (App. 1993) (stating that
miscalculation of his parole eligibility date was inappropriate
remedy and because the petitioner was not claiming that he was
“unlawfully committed, detained, confined or restrained of his
liberty” (citing A.R.S. § 13-4121)).
relief, the superior court was able to consider her petition as
one for special action.
See Brown v. State, 117 Ariz. 476, 477-
78, 573 P.2d 876, 877-78 (1978) (“Despite the fact that the
petitioner is not entitled to relief by habeas corpus we have
extraordinary writ (special action), this court may grant the
motion made is not aptly titled.
We look to substance, not to
The court dismissed Acker’s claims without explicitly
stating that it was treating Acker’s petition as one for special
dismissed her petition on the basis of res judicata even though
she had not raised the same claims in a previous petition for
habeas corpus, but rather in a previous special action petition.
See Sanders v. United States, 373 U.S. 1, 8-9 (1963) (holding
that res judicata is inapplicable in habeas proceedings, but a
court has discretion to dispose of a petition for habeas corpus
In its November 9, 2011 minute entry order, the court assigned
Acker’s petition with the following case number: LC2011-000703001. The Maricopa County Superior Court designates both special
actions and petitions for habeas corpus with a case number
beginning in LC.
when the petitioner seeks to retry a claim formerly considered
and decided in a previous habeas petition).
Thus, to the extent
the court treated Acker’s petition as one for special action, we
find no error.
The superior court properly dismissed Acker’s claims
because it was bound to do so by a previous decision of
court’s decision to decline jurisdiction of a special action or
to rule on the action’s merits.
Files v. Bernal, 200 Ariz. 64,
65, ¶ 2, 22 P.3d 57, 58 (App. 2001).
Generally, a court abuses
its discretion when it commits an error of law in reaching its
decision or fails to provide substantial support.
correct result for the wrong reason.
See City of Phoenix v.
Geyler, 144 Ariz. 323, 330, 697 P.2d 1073, 1080 (1985).
The superior court, in its February 2012 minute entry
order, noted that Acker had already set forth the same claims in
a previous action.
The case to which the court refers is Acker
v. Paralegal Chacon, et al., LC2010-000492-001, affirmed, Acker
v. Paralegal Chacon, 1 CA-CV 10-0643, 2011 WL 4801914 (Ariz.
App. Oct. 11, 2011) (mem. decision) (“2010 special action”).
that earlier case, the superior court declined to accept special
action jurisdiction, finding that either Acker already brought
or planned to bring the same claims in a federal action and that
federal court was a more appropriate forum.
claims she raised in this case.
The claims Acker
In her 2010 petition, Acker
alleged that she was being denied access to the courts by being
denied access to her legal documents and supplies.
personnel, that prison personnel were violating ADOC policies
Acker raised these very same claims in her petition
to the superior court in this case.
See supra ¶ 2.
In her 2010
regarding storage of and access to legal documents, comply with
Acker sought the same relief from the superior court
in this case.3
though the claims raised in the 2010 special action and this
petition are almost identical, the claims here are barred by res
To invoke res judicata, the earlier decision must be
one on the merits.
See In re Gen. Adjudication of All Rights to
Acker’s form of order, which was filed with her petition, asked
the trial court to order the respondents “to provide daily
access to legal documents,” to “cease their unconstitutional
obstruction to petitioner’s fundamental right to access the
courts,” and to change existing ADOC policies regarding inmate
mail and the storage and availability of legal documents.
Use Water in the Gila River Sys. & Source, 212 Ariz. 64, 69, ¶
14, 127 P.3d 882, 887 (2006) (“[T]he doctrine of res judicata
provides that when a final judgment has been entered on the
merits of a case, ‘it is a finality as to the claim or demand in
controversy . . . .’” (citations omitted)).
The superior court
in the 2010 special action and this Court on appeal did not rule
on the merits of Acker’s petition.
Rather, we concluded that
the superior court did not abuse its discretion in declining
special action jurisdiction based on Acker’s statements that she
decision on the merits.4
See Bilagody v. Thorneycroft, 125 Ariz.
88, 92, 607 P.2d 965, 969 (App. 1979) (stating that when the
action jurisdiction, there exists no trial court determination
of the merits for this Court to review on appeal).
While res judicata does not apply, we will affirm the
superior court if it reached the correct result for the wrong
See Geyler, 144 Ariz. at 330, 697 P.2d at 1080.
lower court is bound by the decision of a higher court in this
In her petition for review to the Arizona Supreme Court in the
2010 proceeding, Acker claimed that this Court had misquoted her
special action petition because she had never actually filed a
case in federal court raising these claims and that she had to
exhaust her state remedies before seeking federal habeas relief.
The supreme court denied her petition for review.
this decision or this Court’s 2011 decision precludes Acker from
raising these claims in an action pursuant to 42 U.S.C. section
appellate court’s] rulings.”
State v. Smyers, 207 Ariz. 314,
318 n.4, ¶ 15, 86 P.3d 370, 374 n.4 (2004); see also McKay v.
Indus. Comm’n, 103 Ariz. 191, 193, 438 P.2d 757, 759 (1968)
(“Whether prior decisions of the highest court in a state are to
Any other rule would lead to chaos in our judicial
system.”); Pac. Greyhound Lines v. Brooks, 70 Ariz. 339, 343,
220 P.2d 477, 479 (1950) (“A judgment of this court imports
It must be regarded as free from all error.
It is final and conclusive upon the superior courts and the
judges thereof, and they may not question such judgment . . . .”
Thus, the superior court was bound by this
Court’s decision in the 2010 special action and was obligated to
deny jurisdiction of Acker’s claim.
Therefore, we find no abuse
III. Acker may not raise the issue of her right to file a
notice of change of judge for the first time on appeal.
exercise her right to object to the assignment of Judge Bassett
pursuant to Rule 42(f)(1)(A).
Rule 42(f)(1)(A) provides that
Whether Acker can bring an action under 42 U.S.C. § 1983 for
the conduct alleged here and in the 2010 special action is not
before us and we render no opinion on the merits or availability
of such relief, nor do we imply that such a claim would be
barred by our decision.
“[i]n any action pending in superior court . . . each side is
entitled as a matter of right to a change of one judge and of
one court commissioner.”
A party who wishes to exercise her
right to a change of judge must file a “Notice of Change of
Ariz. R. Civ. P. 42(f)(1)(A).
order which assigned Acker’s petition a new case number and
assigned the case to Judge McClennen.
On January 18, 2012, the
minute entry order granting the State’s motion for an extension
of time for which to file its response to Acker’s petition.
February 13, 2012, the minute entry order dismissing Acker’s
petition was filed and signed by Judge Bassett.
Thus, Acker was
on notice of the change of judge when the court’s January 18,
2012 minute entry order was filed.
Acker never filed a notice
of change of judge, and she failed to raise this issue in a
motion for new trial, a motion for reconsideration, or a motion
for relief from the judgment.
“It is settled that an appellate
court cannot consider issues and theories not presented to the
Richter v. Dairy Queen of S. Ariz., Inc., 131
Ariz. 595, 596, 643 P.2d 508, 509 (App. 1982).
The issue Of Acker’s reply memorandum is moot.
Acker alleges the court erred by failing to consider
her reply to the State’s response to her petition before making
authority to accept jurisdiction of Acker’s claims, the issue is
moot, and we need not decide whether the court erred in failing
to consider Acker’s reply.
DONN KESSLER, Judge
JOHN C. GEMMILL, Presiding Judge
JON W. THOMPSON, Judge