¶ 1 Based on a home invasion in 1984, respondent/cross-petitioner Samuel Wayne Swoopes was convicted after a jury trial of three counts each of armed robbery and kidnapping and one count each of first-degree burglary, sexual assault, and aggravated robbery. This court affirmed the convictions and sentences on appeal,
State v. Swoopes,
¶ 3 After argument, the trial court granted relief and ordered a new trial. The state seeks review of that order, arguing Swoopes is precluded from obtaining relief on any of his claims. In his response and cross-petition for review, Swoopes urges us to deny review or relief on the state’s petition and alternatively challenges the trial court’s denial of relief on the remaining claims he raised in this Rule 32 proceeding.
¶4 We will not disturb a trial court’s ruling on a petition for post-conviction relief absent a clear abuse of discretion.
State v. Schrock,
¶5 Finding Swoopes’s IAC and related claims precluded, we conclude that the trial court erred as a matter of law in ruling otherwise and in granting him post-eonvietion relief. We further conclude that the court did not abuse its discretion by denying relief on Swoopes’s remaining claims.
I.
¶ 6 Identification was the primary issue in this case. Swoopes, along with two other men, entered the home of Linda and Randy D., a married couple, robbing them and their guest Mark H. at gunpoint. One of the other men sexually assaulted Linda. The victims eventually identified Swoopes as the gunman. But shortly after the incident they were unable to clearly describe Swoopes or identify him in a photographic lineup. None of the victims described Swoopes as having any significant facial scarring; however, it is undisputed that Swoopes has a large blemish or discoloration above his right eye.
¶7 Well over a year after the incident, Randy and Mark learned there had been a similar home invasion in the neighborhood the same night and the suspect was being tried on various charges relating to that incident. They attended that trial, observed Swoopes, and immediately recognized him as the gunman in the crimes against them. Thereafter, Linda identified Swoopes in a live lineup, telling police she was looking for a scar that was an identifying feature of his face. All three victims identified Swoopes at trial in this ease.
¶ 8 Michael Mussman, the attorney who represented Swoopes on the charges that arose out of the other home invasion, testified at trial in this case about having seen Randy and Mark at the prior trial in the other case and about having attended the live, June 1985 lineup during which Linda had identified Swoopes. Mussman made similar statements in his November 2002 affidavit, which was submitted in the federal habeas corpus proceeding and filed below in support of Swoopes’s second post-conviction petition in this matter. Mussman stated at
¶ 9 During its deliberations, the jury sent a written question to the trial judge, Judge Meehan, asking to see “any statement made by Linda of a blemish before the physical lineup.” The judge responded in writing that “[t]he statement is not admissible” and directed the jurors to “[r]ely on [their] collective memories.” There was no record concerning the question, other than the written question itself and the response, or of the judge’s having consulted counsel about the question and the response the court intended to give. The trial judge and the prosecutor who tried the case are now deceased, and as discussed below, Swoopes’s trial counsel has no recollection of the event.
II.
¶ 10 Swoopes contended below in this second Rule 32 proceeding that the trial judge’s response, which he claims was an improper, ex parte communication with the jury, violated his due process right to a fair trial, infringed his right to be present at all critical stages of the proceedings, and resulted in fundamental error. Swoopes submitted a statement by one of the jurors, Winsome M., who apparently had been involved in sending the question to the judge, about the importance of the question and answer to the jury’s verdicts. Swoopes contended the error was compounded by the prosecutor’s false suggestion during closing argument that the victims had relied on the sear or blemish to identify Swoopes from the beginning.
f 11 Swoopes acknowledged in his affidavit supporting his second petition for post-conviction relief he had known “some time before ... fil[ing] a pro se, supplemental opening brief in the direct appeal” that the jury had asked during deliberations whether victim Linda D. had ever mentioned before the physical lineup having seen a scar or blemish on the gunman’s face. 2 He claimed that he also “was told ... the judge had responded ... in the neutral, without giving [the jurors] any more information or instruction,” and that he did not learn about the judge’s actual response or personally see the jury’s note and the response until sometime in 2002, during the habeas proceedings in federal court.
¶ 12 Swoopes maintained, inter alia, he was entitled to post-conviction relief based on newly discovered evidence, pursuant to Rule 32.1(e). He also contended both his trial and appellate counsel had been ineffective in not raising the claims relating to Judge Meehan’s handling of the jury note, suggesting the error caused by the purported improper ex parte communication by Judge Meehan with the jury was fundamental and of “sufficient constitutional magnitude” that it was not waived by his failure to raise it until this proceeding. Ariz. R.Crim. P. 32.2 cmt. Swoopes also made a claim of actual innocence, seeking relief pursuant to Rule 32.1(h).
¶ 13 Swoopes’s trial counsel, Michael Ad-dis, stated in his affidavit, submitted in support of both the Rule 32 petition below and the prior federal habeas proceeding, that he did not recall the note that had been submitted by the jury during its deliberations. He stated he “was shown a copy of that note in 2002” and did not remember having seen Judge Meehan’s response at trial but if he had, he would have objected because
¶ 14 Notwithstanding those averments, the trial court found there was insufficient evidence that any ex parte communication had occurred between Judge Meehan and the jury. Because that finding is not clearly erroneous, we have no basis for disturbing it.
See Herrera,
¶ 15 Although Swoopes’s trial counsel avowed he “would have objected to the judge’s response if [he] had been made aware of it,” such speculative assertions do not establish that any improper ex parte communication occurred between the trial judge and jury.
See State v. Rosario,
III.
¶ 16 That no improper ex parte communication occurred, however, does not resolve the question of whether Swoopes’s claims relating to the jury note are precluded. Rule 32.2(a)(3) provides that a defendant is precluded from obtaining post-conviction relief “based upon any ground ... waived at trial, on appeal, or in any previous collateral proceeding,” except claims, such as claims of newly discovered evidence, that are expressly excepted from the rule of preclusion. See Ariz. R.Crim. P. 32.2(b); see also A.R.S. § 13^4232; Ariz. R.Crim. P. 32.1(d), (e), (f), (g), and (h).
¶ 17 Of the various, specified exceptions to preclusion set forth in Rule 32.2(b), Swoopes relied below primarily on the exception for “newly discovered material facts,” Rule 32.1(e), stating that was “the bas[i]s for all of [his] claims.” 3 In other words, Swoopes’s claim hinged largely on his assertion of “newly discovered [facts] that [Judge Meehan had] engaged in an ex parte communication with the jury, in which the judge falsely instructed the jurors that Linda D[.] had made a statement about the scar prior to the physical lineup.” The trial court apparently rejected Swoopes’s claim of newly discovered facts, stating “the note itself and the Judge’s response have always been part of the court file and available for inspection.” But the court further found that, although Swoopes “was made aware of the note soon after the jury returned its verdicts,” he personally “did not learn of the contents of the note and response until his most recent petition was being prepared.”
¶ 19 Having upheld the trial court’s ruling that Swoopes’s claim does not fall within Rule 32.1(e) as newly discovered evidence, we next must determine if the court’s ultimate refusal to find the claim precluded is otherwise supportable. Unfortunately, the precise legal basis for that ruling is not clear. The trial court stated that, “[bjecause [the jury note] issue goes to the fundamental fairness of the trial and because [Swoopes] did not personally waive it, it would be unfair to preclude [his] claim.” But our supreme court has not recognized fairness as a relevant, let alone controlling, factor in resolving preclusion issues.
See Stewart v. Smith,
¶20 Further complicating our analysis is the somewhat confusing approach Swoopes has used in arguing against preclusion, both in the trial court and on review to this court. For example, he argues he “never waived his claim to a fair jury trial and to be present at all critical stages of the proceedings” and, therefore, Rule 32.2(a)(3) does not apply to those claims. Swoopes further argues his IAC claim is not precluded because “he did not knowingly, intelligently, and voluntarily waive his right to effective appellate counsel and the rights counsel failed to protect.” But whether Swoopes’s claim is based purely on alleged IAC or, rather, on alleged violations of various substantive rights, we conclude his claim relating to Judge Meehan’s response to the jury’s note is precluded. Therefore, the trial court abused its discretion in granting relief on that claim. And, contrary to Swoopes’s contention, our supreme court’s decision in
Smith,
IV.
¶21 In
Smith,
our supreme court examined the distinction between claims that may be precluded under Rule 32.2 based on the defendant’s mere failure to raise them previously and claims that require a personal waiver before they may be deemed waived and, therefore, precluded. Procedurally,
Smith
involved a defendant who previously had litigated “a series of unsuccessful petitions for state post-conviction relief,” one of which (the third) had raised IAC claims against his trial and appellate counsel.
Smith,
The question whether an asserted ground is of “sufficient constitutional magnitude” to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to Rule 32.2(a)(3), does not depend upon the merits of the particular ground. It depends merely upon the particular right alleged to have been violated.
¶ 22 As the supreme court noted in Smith, when Rule 32.2 was amended in 1992, a comment was added:
“[S]ome issues not raised at trial, on appeal, or in a previous collateral proceeding may be deemed waived without considering the defendant’s personal knowledge, unless such knowledge is specifically required to waive the constitutional right involved. If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently’ waived the claim. For most claims of trial error, the state may simply show that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding, and that would be sufficient to show that the defendant has waived the claim. If defense counsel’s failure to raise an issue at trial, on appeal or in a previous collateral proceedings is so egregious as to result in prejudice as that term has been constitutionally defined, such failure may be raised by means of a claim of ineffective assistance of counsel.”
With some petitions, the trial court need not examine the facts. For example, if a petitioner asserts ineffective assistance of counsel at sentencing, and, in a later petition, asserts ineffective assistance of counsel at trial, preclusion is required without examining facts. The ground of ineffective assistance of counsel cannot be raised repeatedly. There is a strong policy against piecemeal litigation. See State v. Spreitz,202 Ariz. 1 ,39 P.3d 525 (2002). In other situations, the court must determine the particular right involved by looking at the facts of the claim, not to decide its merits, but to decide whether, at its core, the claim implicates a significant right that requires a knowing, voluntary, and intelligent waiver for preclusion to apply under Rule 32.2(a)(3). Thus, if petitioner asserts ineffective assistance of counsel for the first time in a successive Rule 32 petition, the question of preclusion is determined by the nature of the right allegedly affected by counsel’s ineffective performance. If that right is of sufficient constitutional magnitude to require personal waiver by the defendant and there has been no personal waiver, the claim is not precluded. If it is not of such magnitude, the claim is precluded.
¶ 23 Because Swoopes raised below a separate claim of IAC and argues on review that he “did not waive the right to effective appellate counsel,” we first address his IAC claim. It is undisputed that Swoopes raised a claim of IAC in his first post-conviction petition in 1990.
5
In general, when “ineffective assistance of counsel claims are raised, or could have been raised,
in a Rule 32 post-conviction relief proceeding,
subsequent claims of ineffective assistance will be deemed waived and precluded.”
State v. Spreitz,
¶24 This is not a situation in which a petitioner “asserts ineffective assistance of counsel
for the first time
in a successive Rule 82 petition.”
Smith,
¶25 Implicitly acknowledging that IAC claims against trial counsel were previously raised and are now precluded,
see State v. Conner,
y.
¶ 26 Nonetheless,
Smith
recognized a possible exception to preclusion under Rule
¶27 The constitutional rights on which Swoopes bases his argument are the general due process right of every defendant to a fair trial, which the trial court focused on in granting relief,
9
see Rose v. Clark,
¶28 The court in
Smith
recognized that the mere assertion by a defendant that his or her right to a fair trial has been violated is not a claim of sufficient eonstitutional magnitude for purposes of Rule 32.2.
¶29 Swoopes further asserts, however, that he “never waived his claim ... to be present at all critical stages of the proceedings.” As noted earlier, he maintains that any communication on factual issues between a trial judge and jury is such a critical stage and that, absent a valid, personal waiver, a defendant has a constitutional
¶ 30 As the state points out, quoting
United States v. Gagnon,
¶31 Consistent with this Supreme Court authority, Arizona cases also have addressed a defendant’s right to be present at various stages of his or her trial. In
State v. Christensen,
¶ 32 The Arizona cases on which Swoopes relies to support his argument to the contrary are distinguishable or inapposite. Some involved a defendant’s Sixth Amendment Confrontation Clause right, for which he or she must personally waive the right to be present.
See State v. Perez,
¶33 Although Swoopes repeatedly argues that the jury’s question dealt with a “pivotal factual issue,” he does not argue, nor do we find, that he had a Confrontation Clause right to be present when the trial judge answered the question. Judge Meehan did not read testimony back to the jury or provide it with any factual information in the case.
See Perez,
¶ 34 Similarly, this is not a case in which “a personal confrontation occurred] between the court and the jury potentially touching upon the fundamental relationship between an accused, the court, and the people who judge him.”
State v. Pawley,
¶ 35 Considering all the facts and circumstances surrounding the communications here, as we must, we also cannot say Swoopes had any due process right to be present absent a personal waiver by him.
See Pawley,
¶ 36 We note that in all three Ninth Circuit cases cited by Swoopes, the court employed a
¶ 37 Likewise, although the court again employed broad language in addressing the right to be present in
Rosales-Rodriguez,
it did not require a personal waiver of that right.
¶ 38 Finally, in
Berger,
in which the judge held a private conference with the jurors, apparently in the jury room, the Ninth Circuit stated, “communication between the judge and jury outside of counsel’s presence, without a proper waiver, violates a defendant’s right to due process of law.”
¶ 39 In sum, Swoopes has not established that “the particular right alleged to have been violated” is of “ ‘sufficient constitutional magnitude’ to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3).”
Smith,
¶ 40 Swoopes argued below that Judge Meehan’s “inaccurate answer to the jury’s question ... created fundamental error” that prejudiced him. In granting relief and ordering a new trial, the trial court apparently embraced that argument by finding “the unfortunate choice of wording in [Judge Meehan’s] note [to the jury] inured to the prejudice of [Swoopes] and constituted fundamental error.” The trial court’s characterization of any error here as fundamental, however, does not change the result. By granting relief on this basis, the court implicitly found fundamental error to be tantamount to a claim of sufficient constitutional magnitude for purposes of Rule 32.2. The court’s order suggests, too, that, notwithstanding the rules of preclusion, fundamental error may be raised at any time and, if found, compel relief in a successive post-conviction proceeding such as this.
¶ 41 Nothing in Rule 32.2, the court comment thereto, or
Smith
can be read to support this notion. Not all error that is fundamental involves the violation of a constitutional right that can be waived only if the defendant personally does so knowingly, voluntarily, and intelligently.
See Espinosa,
¶ 42 Although it is true that by failing to raise an issue in the trial court, a defendant “forfeit[s] the right to obtain appellate relief unless [the defendant can] prove that fundamental error occurred,”
State v. Martinez,
¶ 43 In addition, any error here would not properly be characterized as fundamental. Fundamental error is “ ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’ ”
State v. Henderson,
¶44 Finally, as we previously noted, the issue of identity was litigated extensively, both before and during trial. Swoopes filed a motion to suppress any identification of him by Mark, Randy, and Linda, claiming that the out-of-court identification process had been unduly suggestive because of Mark’s and Randy’s observation of him during the other trial and that this tainted Linda’s identification of him before trial and any in-court identification of him by any of the victims. The judge denied the motion after a hearing held pursuant to
State v. Dessureault,
¶ 45 In addition, as noted earlier, the trial court was not convinced there had been an improper, ex parte communication by the judge, nor are we. In any event, that claim, too, relates to trial error, is not fundamental, and is precluded. On the record before us, even assuming any error occurred, we cannot say the error was fundamental.
VII.
¶ 46 In his response to the state’s petition for review, Swoopes suggests the trial court did not decide his related claim of actual innocence made pursuant to Rule 32.1(h), which is excepted from the rule of preclusion. See Ariz. R.Crim. P. 32.2(b). Swoopes argues that he raised a colorable claim for relief under that subsection of the rule and is entitled, at the very least, to an evidentiary hearing on it. We disagree. The trial court rejected post-conviction relief on this ground when it expressly “denied ... all of [Swoopes’s] claims” other than those directly relating to Judge Meehan’s response to the jury’s note. And Swoopes has not established that trial error relating to his identification by witnesses, the trial judge’s allegedly improper answer to the jury, or the prosecutor’s allegedly incorrect and improper argument related to that identification amounts to a claim of actual innocence. This is not “clear and convincing evidence ... that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt.” Ariz. R.Crim. P. 32.1(h).
¶ 47 In his cross-petition for review, Swoopes contends the trial court abused its discretion in denying relief on his claims that the state had withheld exculpatory evidence and improperly destroyed evidence over a decade after his trial. Swoopes also reiterates the claim of actual innocence, which we discussed above. The trial court addressed these additional claims in a manner permitting review by this court, and its resolution of those claims is correct. Therefore, seeing no purpose in rehashing the court’s order here, we adopt its ruling.
See State v. Whipple,
VIII.
¶48 The state’s petition for review is granted. We grant relief on that petition by vacating the trial court’s order granting Swoopes a new trial. Swoopes’s cross-petition for review is granted as well, but because we conclude the trial court did not abuse its discretion in denying relief on the cross-petition, we deny relief.
Notes
.
See Swoopes v. Sublett,
. Swoopes also averred that, although he could not remember "exactly when" he was told about the note before his direct appeal, he "may have been told ... by [his] trial attorney.” Thus, it is not at all clear that Swoopes was unaware during trial of the note from the jury, and in fact he acknowledged in his response filed in this court that he "was aware that the jury had a question.”
. Swoopes also included below a claim that he “is factually innocent of the crimes of which he was convicted." If proven, such a claim is not subject to preclusion. See Ariz. R.Crim. P. 32.1(h), 32.2(b). The trial court, however, denied relief on that claim, and we have no basis for disturbing its ruling. See ¶ 48, infra.
. Effective December 1, 2002, our supreme court again amended its comment to Rule 32.2 by deleting the last sentence of the 1992 comment quoted above. See 203 Ariz. LXX (2002); Ariz. R.Crim. P. 32.2 cmt., 17 A.R.S.
. We have been provided very little to tell us precisely what issues were raised in the first Rule 32 proceeding, and because of the age of that proceeding, our records do not contain any documents shedding light on that question. And, in 1990, when Swoopes filed his petition for review in this court, a defendant was not required to submit a memorandum with the petition for review but, rather, could seek review summarily, which Swoopes did, as the copy of the petition for review attached to the post-conviction petition in this proceeding shows. The record does reflect, however, that in a “Petition for Review of Post-Conviction Relief” Swoopes filed with our supreme court in November 1991, he listed IAC as an issue presented. In addition, in a January 2002 filing in the federal habeas proceeding, Swoopes acknowledged having previously "presented th[e] issue [of IAC] to the Arizona courts by raising the claim in his [first] pro se petition for post-conviction relief” in 1990.
. In
State v. Bennett,
. Outside the context of federal habeas corpus proceedings, the precise implications of our supreme court’s holding in
Smith
remain somewhat obscure. But what is clear from the United States Supreme Court’s subsequent opinion in Smith’s case is that Rule 32.2(a)(3) continues to permit a finding of waiver and preclusion when a defendant has failed to assert IAC claims in a first post-conviction proceeding.
See Stewart v. Smith,
. We note that, although the trial court did not expressly address or make any findings on Swoopes’s IAC claims, the court stated "[t]he failure to previously raise this issue [relating to the jury note and response] rests on the shoulders of previous counsel.” The court, however, did not identify which counsel it was referring to or what effect, if any, that finding might have on the legal issues relating to preclusion.
. The trial court ultimately ordered a new trial after finding that a factually unsupported portion of "the prosecutor’s argument and [Judge Meehan's] subsequent response to the jury note combined to deprive [Swoopes] of a fair trial.” For reasons noted above, however, that finding does not necessarily equate to a finding that any right "of sufficient constitutional magnitude to require personal waiver by the defendant” was at issue and violated, nor did the trial court make any such finding.
Stewart v. Smith,
.
See also State v. Lawrence,
. As noted earlier, the trial court did not find sufficient support for Swoopes’s claim that there had been an improper ex parte communication between Judge Meehan and the jury. But even if Judge Meehan had responded to the jury’s note without first contacting or consulting with Swoopes’s trial counsel (Addis), that would not change the result. At most, that scenario might have constituted trial error but still would not implicate any right "of sufficient constitutional
magnitude to require personal waiver by the defendant.”
Smith,
. We acknowledge the statement by one of the jurors, provided in support of the petition for post-conviction relief, that the judge’s answer suggested that victim Linda D. had mentioned before the physical lineup having seen a blemish on the suspect’s face, and that otherwise the juror would have voted to find Swoopes not guilty. Aside from the fact that it is improper to ”inquire[] into the subjective motives or mental processes which led a juror to assent or dissent from the verdict,” Rule 24.1(d), Ariz. R.Crim. P., 17 A.R.S.;
State v. Covington,