STATE v. THOMAS

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NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. OMAR LATEEF THOMAS, Petitioner. No. 1 CA-CR 13-0234 PRPC FILED 09-18-2014 Petition for Review from the Superior Court in Maricopa County No. CR1989-009859 The Honorable Bruce R. Cohen, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney s Office, Phoenix By Diane Meloche Counsel for Respondent Omar Lateef Thomas, Buckeye Petitioner MEMORANDUM DECISION Presiding Judge Margaret H. Downie, Judge Andrew W. Gould and Judge Samuel A. Thumma delivered the following decision: STATE v. THOMAS Decision of the Court PER CURIAM: ¶1 Omar Lateef Thomas petitions for review from the superior court s dismissal of his petition for post-conviction relief. For the following reasons, we grant review and deny relief. ¶2 A jury convicted Thomas in 1990 of four counts of aggravated assault. The superior court sentenced him to four concurrent terms of life imprisonment without a possibility of parole for twenty-five years. We affirmed Thomas s convictions and sentences on direct appeal. State v. Thomas, 1 CA-CR 90-382 (Ariz. App. Apr. 14, 1992). Thomas now seeks review of the summary dismissal of his latest successive petition for postconviction relief. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c). ¶3 Thomas argues his trial counsel was ineffective by failing to inform him of a plea offer and contends his first post-conviction relief counsel was ineffective by failing to discover and raise this issue in the first post-conviction relief proceeding filed in 1995.1 Thomas contends the decisions in Martinez v. Ryan, 132 S.Ct. 1309 (2012), Missouri v. Frye, 132 S.Ct. 1399 (2012), and Ladler v. Cooper, 132 S.Ct. 1376 (2012), constitute significant changes in the law that permit him to now assert these untimely claims. We disagree. ¶4 Thomas s claims are precluded because he raised and/or could have raised these issues in prior post-conviction relief proceedings. In his earlier post-conviction relief proceeding, Thomas argued Martinez, Frye, and Ladler constituted significant changes in the law that permitted him to raise claims of ineffective assistance of his first post-conviction relief counsel. Thomas also addressed the State s plea offer. Thomas offers no explanation for his failure to raise his new claims of ineffective assistance of trial and post-conviction relief counsel in the prior proceeding. Any claim a defendant raised or could have raised in an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the exceptions under Rule 32.2(b) apply here. ¶5 Moreover, Martinez, Frye, and Ladler are not significant changes in the law that permit Thomas to assert untimely claims of ineffective assistance. In Frye and Ladler, the Court held that a defendant has a right to the effective assistance of counsel during the plea bargain process. Frye, 132 S.Ct. at 1407-08; Ladler, 132 S.Ct. at 1384. In Frye, the court 1 Counsel found no colorable claims for relief. 2 STATE v. THOMAS Decision of the Court held that the right to effective assistance includes the right to have counsel communicate all formal, favorable plea offers to the defendant. Frye, 132 S.Ct. at 1408. Frye and Ladler are not significant changes in the law as applied in Arizona because Arizona has long recognized that the right to effective assistance of counsel extends to the plea bargain process and that counsel must adequately communicate all plea offers to the defendant. State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17, 10 P.3d 1193, 1200 (App. 2000). Thomas s reliance on Martinez is also unavailing. In Martinez, the Court held: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez, 132 S.Ct. at 1320. The holding in Martinez simply means that a defendant can seek habeas corpus relief in federal court based on ineffective assistance of trial counsel if he or she can first show either that the defendant had no counsel in the first post-conviction relief proceeding or that counsel in the first post-conviction relief proceeding was ineffective. CONCLUSION ¶6 For the reasons stated, we grant review and deny relief. :gsh 3

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