State of Arizona v. Ronald Bruce Bigger, 492 P.3d 1020

Background

Ronald Bigger was convicted of first-degree murder and conspiracy and sentenced to concurrent natural-life terms; convictions affirmed on direct appeal in 2012.
Bigger filed an untimely notice of post-conviction relief (PCR) in May 2012 and, after multiple extensions, filed his PCR petition in January 2016.
In his PCR petition Bigger alleged ineffective assistance of counsel (IAC) and argued that Perry v. New Hampshire (and related Arizona authority) constituted a significant change in the law entitling him to relief.
The trial court summarily denied the petition; the court of appeals found the PCR timely under Rule 32.4’s no-fault exception, rejected Bigger’s IAC claims (noting no expert affidavit), and held Perry did not supply a retroactive change—rather Nottingham did but was not retroactive.
The Arizona Supreme Court granted review to decide (1) whether an expert standard-of-care affidavit is required for a colorable IAC claim, (2) whether Perry created a significant change in Arizona law, and (3) whether A.R.S. § 13-4234(G) conflicts with Rule 32.4. The Court answered: no, no (and rejected Nottingham’s expansive reading of Perry), and yes (the statute is unconstitutional as applied because it conflicts with Rule 32.4’s no-fault exception).

Issues

Issue	Plaintiff's Argument (Bigger)	Defendant's Argument (State)	Held
Whether a defendant must present a standard-of-care expert affidavit to make a colorable IAC claim	An expert affidavit is required to show counsel fell below prevailing professional norms	No such affidavit is required; courts can assess reasonableness from the record and other sources	No. An expert affidavit may help but is not required; Bigger’s allegations did not show deficient performance or prejudice
Whether Perry v. New Hampshire constituted a significant change in Arizona law under Ariz. R. Crim. P. 32.1(g)	Perry (and its reasoning) changed the law so cautionary jury instructions must be given and thus is a significant change	Perry did not alter due-process principles; existing safeguards suffice; Nottingham misread Perry	Perry did not effect a significant change; Nottingham’s broader reading was incorrect and Perry did not mandate a new rule requiring cautionary instructions in the absence of improper state conduct
Whether A.R.S. § 13-4234(G) (making PCR time limits jurisdictional) conflicts with this Court’s Rule 32.4 and is unconstitutional as applied	§ 13-4234(G) conflicts with Rule 32.4 and unlawfully strips courts of the no-fault exception	The statute establishes jurisdictional time limits and requires dismissal of untimely notices	§ 13-4234(G) is unconstitutional as applied because it conflicts with Rule 32.4’s no-fault exception; trial courts may excuse untimely notices when delay is not defendant’s fault
Whether Bigger’s IAC claims warranted an evidentiary hearing (application of Strickland)	Counsel’s tactical choices and failures (various trial decisions) amounted to IAC that probably changed the outcome	Counsel’s decisions were strategic, investigated, reasoned, and not shown to be prejudicial	Bigger failed to state a colorable IAC claim; the record showed reasonable strategic choices and no reasonable probability of a different outcome

Key Cases Cited

Perry v. New Hampshire, 565 U.S. 228 (2012) (Supreme Court held due process does not require a preliminary judicial reliability screening when identifications were not the product of police-arranged suggestive procedures)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance: deficient performance and prejudice)
State v. Nottingham, 231 Ariz. 21 (App. 2012) (Arizona Court of Appeals interpreted Perry to require cautionary instructions; Arizona Supreme Court rejected that expansive reading)
State v. Pandeli, 242 Ariz. 175 (2017) (standards for reviewing Rule 32 claims and deference to reasonable strategic decisions)
State v. Nash, 143 Ariz. 392 (1985) (trial courts may consider expert testimony but are not bound to external guidelines when assessing attorney reasonableness)
State ex rel. Napolitano v. Brown, 194 Ariz. 340 (1999) (statutory time limits that conflict with this Court’s rules may violate the Court’s rulemaking authority)
State v. Shrum, 220 Ariz. 115 (2009) (explains what constitutes a "significant change" in law for Rule 32.1(g))
State v. Fowler, 156 Ariz. 408 (App. 1987) (statutory time limits for PCR found to conflict with court rules; distinguishes substantive vs. procedural matters)