STATE v. AMARILLAS
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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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. JOHNNY DOMINGUEZ AMARILLAS, Petitioner. No. 1 CA-CR 15-0643 PRPC FILED 6-22-2017 Petition for Review from the Superior Court in Maricopa County No. CR 1995-010527 The Honorable Robert L. Gottsfield, Judge, Retired REVIEW GRANTED; RELIEF DENIED COUNSEL Maricopa County Attorney’s Office, Phoenix By Diane Meloche Counsel for Respondent Johnny Dominguez Amarillas, San Luis Petitioner MEMORANDUM DECISION Acting Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Maria Elena Cruz and Judge Kent E. Cattani joined. STATE v. AMARILLAS Decision of the Court S W A N N, Judge: ¶1 Johnny Dominguez Amarillas was convicted of and sentenced for aggravated assault and three counts of armed robbery in 1996, and we affirmed the convictions and sentences on direct appeal. Amarillas now petitions this court for review from the superior court’s summary dismissal of a petition for habeas corpus that the court treated as a successive petition for post-conviction relief. We grant review. ¶2 Amarillas argues: (1) the superior court deprived him of a fair trial and the ability to present a complete defense when it denied his motions to sever the counts and to sever his case from that of his codefendant; (2) in-court identifications by witnesses were unduly suggestive; (3) his trial, appellate and prior post-conviction-relief counsel all were ineffective; (4) the superior court erred when it excluded evidence; (5) the state failed to present sufficient evidence of his guilt; and (6) the superior court erred when it treated his petition for writ of habeas corpus as a successive petition for post-conviction relief. Amarillas does not present any of these issues in the context of newly discovered evidence or a significant change in the law. He argues, however, that the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1 (2012), constitutes a significant change in the law that allows him to raise his claims in an untimely fashion. ¶3 We deny relief. First, as to the sixth claim, the superior court properly treated the petition for writ of habeas corpus as a petition for postconviction relief pursuant to Ariz. R. Crim. P. (“Rule”) 32.3. Rule 32.3 provides that if a defendant applies for a writ of habeas corpus in a trial court that has jurisdiction over the defendant and the defendant raises any claim attacking the validity of the conviction or sentence, the court “shall” transfer the matter to the court in which the defendant was convicted or sentenced, and that court “shall” in turn treat the matter as a petition for post-conviction relief pursuant to Rule 32. ¶4 Second, Amarillas could have raised all of his other issues on direct appeal or in a timely prior post-conviction-relief proceeding. With exceptions not applicable here, a claim that a defendant could have raised on direct appeal or in an earlier post-conviction-relief proceeding is precluded. Rule 32.2. Further, Martinez is of no aid to Amarillas. Martinez 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 2 STATE v. AMARILLAS Decision of the Court collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 16. Martinez simply means Amarillas can seek habeas corpus relief in federal court based on ineffective assistance of trial counsel if he can first show either that he had no counsel in his first postconviction-relief proceeding or that counsel in that proceeding was ineffective. Martinez does not require a state court to consider all untimely claims raised in post-conviction proceedings. ¶5 For these reasons, we grant review but deny relief. AMY M. WOOD • Clerk of the Court FILED: AA 3
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