STATE OF ARIZONA v. THOMAS WHITE
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NOTICE: 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 FILED BY CLERK NOV 14 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. THOMAS WHITE, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2012-0292-PR DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY Cause No. S1100CR200500580 Honorable Robert C. Brown, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED Thomas White Tucson In Propria Persona E C K E R S T R O M, Presiding Judge. ¶1 Pursuant to a plea agreement, petitioner Thomas White was convicted of manslaughter in 2006. The trial court sentenced him to an enhanced, aggravated, eighteen-year prison term. The court denied relief on White s first two petitions for postconviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We granted review but denied relief on both of White s petitions for review from the court s denial of postconviction relief. See State v. White, No. 2 CA-CR 2012-0198-PR (memorandum decision filed Aug. 2, 2012); State v. White, No. 2 CA-CR 2010-0239-PR (memorandum decision filed Oct. 27, 2010). ¶2 While White s petition for review in his second Rule 32 proceeding was pending in this court, he filed a Notice of Post-Conviction Relief Counsel Request in the trial court. In its ruling dismissing White s notice, the court determined, [t]o the extent that [White] means this to be a subsequent Notice of Post-Conviction Relief, the Notice does not comply with Rule 32.2(b) and is summarily dismissed. We will not disturb a trial court s ruling on a petition for post-conviction relief absent a clear abuse of the court s discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here. ¶3 Before we issued our memorandum decision denying relief on White s second petition for review, he filed the petition for review now before us. On review, White first asserts that because Judge Brown was a prosecutor at the time the case was prosecuted, he should not have presided over the post-conviction proceedings in this matter. White raised this very issue in his motion to vacate, filed in April 2012, shortly after the trial court dismissed his second petition for post-conviction relief. And, in our memorandum decision denying relief on White s second petition for review, we addressed that claim on the merits, finding it both precluded, see Ariz. R. Crim. P. 32.2(a)(2), and without merit. White, No. 2 CA-CR 2012-0198-PR, ¶¶ 3-4. Moreover, because White did not raise this claim in the notice of post-conviction relief upon which this petition for review is based, it is not properly before us on review. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review limited to issues which were decided by the 2 trial court ); see also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980) (issues may not be raised properly for first time in petition for review). ¶4 White also generally argues the trial court erroneously dismissed his notice of post-conviction relief, in which he obliquely referred to the United States Supreme Court s decision in Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 (2012), apparently for the proposition that counsel should be appointed to represent him to present a claim of actual innocence. Because White raised a claim based on Martinez in his second postconviction petition, he is precluded from doing so now. See Ariz. R. Crim. P. 32.2(a)(2). ¶5 We grant the petition for review but deny relief. /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge CONCURRING: /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge* *A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012. 3
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