STATE OF ARIZONA v. JACOB MAGALLANES

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IN THE ARIZONA COURT OF APPEALS DIVISION TWO THE STATE OF ARIZONA, Respondent, v. JACOB MAGALLANES, Petitioner. No. 2 CA-CR 2015-0023-PR Filed April 8, 2015 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Petition for Review from the Superior Court in Pima County No. CR20103723001 The Honorable Deborah Bernini, Judge REVIEW GRANTED; RELIEF DENIED COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Jacob Magallanes, Kingman In Propria Persona STATE v. MAGALLANES Decision of the Court MEMORANDUM DECISION Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Miller and Judge Espinosa concurred. E C K E R S T R O M, Chief Judge: ¶1 Jacob Magallanes seeks review of the trial court’s order summarily denying his successive petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Magallanes has not met his burden of demonstrating such abuse here. ¶2 After a jury trial, Magallanes was convicted of two counts of aggravated assault and sentenced to concurrent, ten-year prison terms. We affirmed his convictions and sentences on appeal. State v. Magallanes, No. 2 CA-CR 2011-0246 (memorandum decision filed Nov. 6, 2012). Magallanes filed a notice of post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but had found no claims to raise in post-conviction proceedings. Magallanes then filed a pro se petition arguing the state improperly had delayed filing a complaint following his arrest and had denied his right to counsel because it filed the complaint before he was assigned counsel. The trial court summarily denied relief, and Magallanes did not seek review of that ruling pursuant to Rule 32.9(c). ¶3 Magallanes filed a second notice of and petition for post-conviction relief, arguing that trial counsel had been ineffective in failing to advise him of a plea offer by the state. He further argued he could raise the claim in a successive proceeding pursuant to Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012). The trial 2 STATE v. MAGALLANES Decision of the Court court summarily denied relief and dismissed Magallanes’s notice.1 This petition for review followed. ¶4 On review, Magallanes repeats his claim of ineffective assistance of counsel and his argument that, pursuant to Martinez, he is entitled to raise the claim in a successive post-conviction proceeding. But his claim of ineffective assistance plainly is precluded because it could have been raised in his first postconviction proceeding. See Ariz. R. Crim. P. 32.2(a). Nothing in Martinez alters that result. In that case, the Supreme Court addressed a defendant’s equitable right to effective representation of initial post-conviction counsel in the context of default in federal habeas review. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 5, 307 P.3d 1013, 1014 (App. 2013), citing Martinez, ___ U.S. at ___, 132 S. Ct. at 1315, 1319-20. It does not apply to successive post-conviction claims under Rule 32. See Escareno-Meraz, 232 Ariz. 586, ¶¶ 4-6, 307 P.3d at 1014. ¶5 Accordingly, although we grant review, we deny relief. 1In his notice, Magallanes stated he was entitled to raise his claim of ineffective assistance of counsel pursuant to “The Martinez Exception.” The trial court, in denying relief, commented that “[t]here are many cases entitled State v. Martinez which address post-conviction issues, but the Court cannot find a case that would allow a second unsupported notice post appeal to go forward.” We observe that Magallanes made clear in his petition—which was attached to his notice—that he was referring to Martinez v. Ryan. 3

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