State v. Salem
1 CA-CR 15-0851-PRPC
| Ariz. Ct. App. | Jul 18, 2017Background
- Richard Newman Salem was convicted by a jury of nine counts (including aggravated assault on an officer, resisting arrest, criminal trespass); longest concurrent sentence 10.5 years. Direct appeal affirmed in 2008; mandate issued Feb 2009.
- Salem filed a first Rule 32 petition in 2009 raising juror dishonesty and ineffective assistance claims; the superior court dismissed and review was denied in 2011.
- In December 2014 Salem filed a notice and successive Rule 32 petition asserting: ineffective assistance for failure to inform him of a favorable plea offer; actual innocence; and newly discovered evidence (post-trial PTSD diagnosis, alleged adverse reaction to Paxil, a precluded witness’s testimony, and scientific studies linking Paxil to aggression).
- The superior court dismissed the successive petition, finding no material issue of fact or law entitling Salem to relief; Salem sought review.
- The appellate court reviewed whether the asserted grounds fit Rule 32.2(b) exceptions (newly discovered facts, actual innocence, ineffective assistance) and concluded Salem failed to meet the standards for those exceptions or to show prejudice from counsel’s conduct.
Issues
| Issue | Salem's Argument | State's Argument | Held |
|---|---|---|---|
| Whether asserted evidence (Paxil studies, PTSD diagnosis, new witness) is newly discovered material fact under Rule 32.2(b) | The studies and diagnoses came to light after trial and could show his behavior was medication/illness driven | Studies predated trial or could have been found with diligence; evidence is cumulative or not new | Not newly discovered; precluded or discoverable with diligence |
| Whether the new evidence supports actual innocence | If jury heard the studies and witness testimony, no reasonable jury would convict | Salem previously relied on mental-health/medication defense at trial; new materials wouldn’t change verdict | Actual innocence claim unsupported by the record |
| Whether trial counsel was ineffective for failing to inform Salem of a favorable plea offer | Counsel did not communicate a favorable EDC plea; Salem would have accepted it | Record shows counsel and Salem were informed; counsel negotiated and proposed counteroffers | No deficient performance or prejudice shown; claim fails under Strickland |
| Whether successive petition should be allowed or is precluded by Rule 32.2(a) | Exceptions apply to overcome preclusion (newly discovered facts, actual innocence, IAC) | No Rule 32.2(b) exception satisfied; claims precluded | Successive petition dismissed; superior court did not abuse discretion |
Key Cases Cited
- State v. Gutierrez, 229 Ariz. 573 (appellate review standard for PCR rulings)
- State v. Carriger, 143 Ariz. 142 (Rule 32 burden to plead exceptions to preclusion)
- State v. Dogan, 150 Ariz. 595 (App. 1986) (definition of "newly-discovered material facts")
- State v. Bilke, 162 Ariz. 52 (new evidence must be discoverable with due diligence to qualify)
- State v. Rosario, 195 Ariz. 264 (standard that IAC claims require provable reality, not speculation)
- Strickland v. Washington, 466 U.S. 668 (IAC prejudice and performance standard)
- State v. Nash, 143 Ariz. 392 (application of Strickland in Arizona)