Case Information
*1 FILED BY CLERK AUG 21 2013 IN THE COURT OF APPEALS COURT OF APPEALS DIVISION TWO STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) 2 CA-CR 2013-0094-PR
) DEPARTMENT B Respondent, )
) O P I N I O N v. )
)
RAMON JUAN ESCARENO-MERAZ, )
)
Petitioner. )
) PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR61723
Honorable Kathleen Quigley, Judge REVIEW GRANTED; RELIEF DENIED Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Respondent Ramon Juan Escareno-Meraz Tucson
In Propria Persona
K E L L Y, Judge. Ramon Escareno-Meraz petitions this court for review of the trial court’s
summary dismissal of his successive notice of post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has *2 abused its discretion. See State v. Swoopes , 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We grant review but deny relief. Escareno-Meraz was convicted after a jury trial of one count of illegally
controlling and/or conducting a criminal enterprise; three counts of unlawful use of a wire communication to facilitate a narcotics transaction; one count of unlawful offer to transfer marijuana weighing more than two pounds; one count of conspiracy to possess for sale, transfer, or transport for sale, and/or sell marijuana weighing more than four pounds; and one count of unlawful transportation of marijuana for sale weighing more than two pounds. He was sentenced to aggravated prison terms, including three consecutive 18.5-year terms. We affirmed his convictions and sentences on appeal. State v. Escareno-Meraz , No. 2 CA-CR 99-0186 (memorandum decision filed Mar. 29, 2001). Escareno-Meraz then sought post-conviction relief, which the trial court denied, and this court denied relief on review. State v. Escareno-Meraz , No. 2 CA-CR 2002-0450-PR (decision order filed Jul. 30, 2004). In February 2013, Escareno-Meraz filed a notice of post-conviction relief
asserting that Martinez v. Ryan , ___ U.S. ___, 132 S. Ct. 1309 (2012), constituted a significant change in the law entitling him to raise a claim of ineffective assistance of Rule 32 counsel. See Ariz. R. Crim. P. 32.1(g); 32.2(b). The trial court summarily dismissed the notice, concluding did not alter the longstanding Arizona rule that a non-pleading defendant “may not assert a claim of ineffective assistance of post- conviction counsel.” Non-pleading defendants like Escareno-Meraz have no constitutional right
to counsel in post-conviction proceedings; thus, despite the existence of state rules providing counsel, a claim that Rule 32 counsel was ineffective is not a cognizable ground for relief in a subsequent Rule 32 proceeding. See State v. Mata 336-37, 916 P.2d 1035, 1052-53 (1996); State v. Krum , 183 Ariz. 288, 291-92 & n.5, 903 P.2d 596, 599-600 & n.5 (1995); Osterkamp v. Browning , 226 Ariz. 485, ¶ 18, 250 P.3d 551, 556 (App. 2011); State v. Armstrong , 176 Ariz. 470, 474-75, 862 P.2d 230, 234-35 (App. 1993), overruled on other grounds by State v. Terrazas , 187 Ariz. 387, 390, 930 P.2d 464, 467 (App. 1996). On review, Escareno-Meraz asserts that, in light of , we should extend the right to effective assistance of Rule 32 counsel to non-pleading defendants. In , the Supreme Court determined:
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 collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
___ U.S. at ___, 132 S. Ct. at 1320. But the Court did not ground its decision in a constitutional right, instead
determining that defendants had an “equitable” right to the effective assistance of initial post-conviction counsel, and it limited its decision to the application of procedural default in federal habeas review. Id. at ___, 132 S. Ct. at 1315, 1319-20. Indeed, the Court expressly stated it was not deciding the question of whether a defendant is entitled to effective assistance of counsel in the first collateral proceeding in which the defendant *4 may assert a claim of ineffective assistance of trial counsel. Id. at ___, 132 S. Ct. at 1315. Thus, does not alter established Arizona law. Escareno-Meraz
additionally suggests that we nonetheless should create a right for non-pleading defendants to effective representation in Rule 32 proceedings due to the “limited” nature of federal habeas review. [1] Even if we could disregard our supreme court’s determination that no such right exists, we find no basis to do so. See State v. Sullivan ¶ 15, 69 P.3d 1006, 1009 (App. 2003) (court of appeals may not disregard decisions of supreme court). The trial court did not err in summarily dismissing Escareno-Meraz’s
successive notice of post-conviction relief. Although review is granted, relief is denied.
/s/ Virginia C. Kelly VIRGINIA C. KELLY, Judge CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
[1] Escareno-Meraz asserts in passing that Lockyer v. Andrade , 538 U.S. 63 (2003), and Bell v. Cone , 535 U.S. 685 (2002), “can only continue to be good law if is held applicable to those who go to trial.” Nothing in those decisions supports Escareno- Meraz’s argument.