STATE OF ARIZONA v. OMAR MORENO
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FILED BY CLERK 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 MAY 23 2013 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Respondent, v. OMAR MORENO, Petitioner. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2013-0101-PR DEPARTMENT B MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court PETITION FOR REVIEW FROM THE SUPERIOR COURT OF MARICOPA COUNTY Cause No. CR1993093484 Honorable Daniel G. Martin, Judge REVIEW GRANTED; RELIEF DENIED William G. Montgomery, Maricopa County Attorney By Diane Meloche Rachelle S. Ferraro Phoenix Attorneys for Respondent Phoenix Attorney for Petitioner K E L L Y, Judge. ¶1 Petitioner Omar Moreno seeks review of the trial court s order denying his petition for post-conviction relief and motion for rehearing, filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb a trial court s ruling on a petition for post- conviction relief absent a clear abuse of discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here. ¶2 Pursuant to a plea agreement, Moreno, a permanent resident alien, was convicted in 1998 of possession of marijuana for sale. The trial court suspended the imposition of sentence and placed Moreno on probation for a period of three years. According to the affidavit Moreno attached to his notice of post-conviction relief, he was advised by the immigration office in 2009 that he would be detained for deportation and removal. In 2011, more than twelve years after he was convicted and placed on probation, Moreno initiated a proceeding for post-conviction relief, arguing that his Sixth Amendment right to counsel had been violated because his defense attorney had not advised him about the immigration consequences of his guilty plea, as required by Padilla v. Kentucky, 559 U.S. 356 (2010). In his notice and petition, Moreno cited Rule 32.1(g), asserting Padilla constituted a significant change in the law that entitled him to relief. Ariz. R. Crim. P. 32.1(g) ( significant change in the law that if determined to apply to defendant s case would probably overturn the defendant s conviction or sentence ground for relief). Citing this court s decision in State v. Poblete, 227 Ariz. 537, ¶¶ 10, 14, 16, ¶3 260 P.3d 1102, 1105-07 (App. 2011), the trial court found Padilla created a new rule of law which did not apply to defendants, like Moreno, whose conviction was final1 when Padilla was decided. The court thus denied Moreno s petition for post-conviction relief 1 See State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 831-32 (2003) ( A defendant s case becomes final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. ), quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987). Moreno does not appear to dispute that his 1998 conviction was final before Padilla was decided in 2010. 2 as untimely and precluded.2 The court also denied Moreno s motion to amend his Rule 32 petition pursuant to Rule 32.6(d), to argue alternatively that Padilla . . . may not have created a new rule for purposes of . . . retroactivity, noting it did not see how any argument presented could change what the court of appeals had decided regarding retroactivity in Poblete. The court also denied Moreno s motion for rehearing. ¶4 On review, Moreno argues that, although Padilla is a significant change in the law, it does not create a new constitutional rule of law but [is] just another application of Strickland3 [and] therefore as an old rule, it is retroactively applicable to cases on collateral review. Thus, he maintains this court incorrectly concluded in Poblete that Padilla introduced a new rule of law, and asserts that Padilla should apply retroactively to him. Moreno also maintains the trial court improperly denied his motion to amend his petition to argue Padilla did not create a new rule of law. Finally, Moreno asserts [u]nfortunately, to date, the United States Supreme Court has not yet answered this specific question [regarding the retroactive application of Padilla] although the justices in the Padilla opinion suggest they intended the decision to be retroactively applied to cases on collateral review. ¶5 But, in February 2013, after Moreno submitted his petition for review, the Supreme Court concluded that Padilla does not apply retroactively to cases that were final before it was decided. Chaidez v. United States, ____ U.S. ____, 133 S. Ct. 1103, 1105 (2013). The Court concluded that its decision in Padilla answered a question about the Sixth Amendment s reach that [the Court] had left open, in a way that altered 2 Although the trial court scheduled an evidentiary hearing in the Rule 32 matter, after the state notified the court of the Poblete decision, the court ruled without conducting an evidentiary hearing. 3 Strickland v. Washington, 466 U.S. 668 (1984). 3 the law of most jurisdictions, thereby breaching the previously chink-free wall between direct and collateral consequences. Id. at 1110. Reasoning Padilla s holding that the failure to advise about a non-criminal consequence [like deportation] could violate the Sixth Amendment would not have been in fact, was not apparent to all reasonable jurists before Padilla, the Court concluded Padilla announced a new rule of law. Id. at 1111, quoting Lambrix v. Singletary, 520 U.S. 518, 528 (1997). The Court thus held that Padilla did not apply retroactively to convictions that were final when it was decided. Id. at 1107, relying on Teague v. Lane, 489 U.S. 288 (1989). ¶6 Because the trial court correctly found that Padilla did not apply to Moreno s case, we grant the petition for review but deny relief. /s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING: /s/ Garye L. Vásquez GARYE L. Và SQUEZ, Presiding Judge /s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge 4
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