STATE v. USHER

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NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA, Respondent, v. ANDREW ANTHONY USHER, Petitioner. No. 1 CA-CR 14-0658 PRPC FILED 9-27-2016 Petition for Review from the Superior Court in Maricopa County No. CR2008-009407-049 The Honorable Roland J. Steinle, III, Judge, Retired REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Ballecer & Segal, LLP, Phoenix By Natalee E. Segal Counsel for Petitioner STATE v. USHER Decision of the Court MEMORANDUM DECISION Presiding Judge Diane M. Johnsen, Judge Jon W. Thompson and Chief Judge Michael J. Brown delivered the decision of the court. PER CURIAM: ¶1 Andrew Anthony Usher petitions this court for review from the dismissal of his successive post-conviction relief petition. Usher pled guilty to attempted possession of marijuana for sale in March 2010, and the superior court imposed probation. Usher argues his counsel was ineffective when he incorrectly advised Usher that his conviction would not affect Usher's immigration status. Usher argues he did not learn of the consequences of counsel's error until 2013, when deportation proceedings began. ¶2 Usher's claim is precluded because he could have raised it in his first petition for post-conviction relief. Ariz. R. Crim. P. 32.2(a). Usher argues he did not know his lawyer had given him faulty advice until two years after he entered the plea. But his failure to realize that his lawyer had not properly advised him until deportation proceedings began is not a cognizable exception from preclusion under Rules 32.2(b) and 32.1(f) (defendant is without fault in failing to file a timely notice of postconviction relief). State v. Poblete, 227 Ariz. 537, 539-40, ¶¶ 6-7 (App. 2011). ¶3 Accordingly, we grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 2

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