State v. Leary

ECKERSTROM, Chief Judge

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NOT FOR PUBLICATION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. 31.19(e).

Petition for Review from the Superior Court in Maricopa County
No. CR2013002001002DT
The Honorable Karen L. O'Connor, Judge

COUNSEL

Mark Brnovich, Arizona Attorney General
By Liz Barrick, Assistant Attorney General, Phoenix
Counsel for Respondent

David Leary, Kingman
In Propria Persona

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

ECKERSTROM, Chief Judge:

¶1 David Leary seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Leary has not shown such abuse here.

¶2 After a jury trial, Leary was convicted of conspiracy to commit possession of narcotic drugs for sale, sale or transportation for sale of marijuana, and possession of cocaine for sale. He was sentenced to concurrent prison terms, the longest of which are 9.25 years. We affirmed his convictions and sentences on appeal. State v. Leary, No. 1 CA-CR 14-0488 (Ariz. App. May 24, 2016) (mem. decision).

¶3 Leary sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but found no "colorable issue" to raise under Rule 32. Leary then filed a pro se petition raising numerous claims, including trial error and ineffective assistance of trial, appellate, and Rule 32 counsel. The trial court summarily denied relief, noting that several of Leary's claims involving a previous indictment that had been dismissed were not "within the scope of Rule 32" and concluding that Leary's remaining claims of trial error were precluded pursuant to Rule 32.2(a)(3) because they had not been raised on appeal. The court further determined that Leary's claims of ineffective assistance of trial and appellate counsel were not colorable, and that his claim of ineffective assistance of Rule 32 counsel was not cognizable under Rule 32. This petition for review followed.

¶4 On review, Leary first argues the presiding judge erred in denying a motion for change of judge for cause Leary had filed with his pro se petition. We review a ruling on a claim of judicial bias for an abuse of discretion. State v. Schackart, 190 Ariz. 238, 257 (1997). On review, Leary does nothing more than refer to the allegations he made below. He has not identified any error in the presiding judge's conclusion that the trial court's

adverse rulings did not demonstrate "deep-seated favoritism" and that Leary had "fail[ed] to identify and substantiate any extra-judicial source of bias." See State v. Ellison, 213 Ariz. 116, ¶ 40 (2006). In any event, the motion was patently untimely, having been filed well after Leary was given leave to file a pro se petition and after he learned the facts purportedly supporting his claim of bias. See Ariz. R. Crim. P. 10.1(b)(1).

¶5 Leary next summarizes the various claims of trial error made in his petition below. He seems to argue that some of his claims are not subject to preclusion because they constitute fundamental error. But claims of fundamental error are not exempt from preclusion. See State v. Swoopes, 216 Ariz. 390, ¶ 42 (App. 2007). Leary further asserts in passing that one of his claims is of "significant const[itutional] magnitude," apparently referring to the rule that claims of sufficient constitutional magnitude require a knowing waiver and are not subject to preclusion pursuant to Rule 32.2(a)(3). See State v. Lopez, 234 Ariz. 513, ¶¶ 7-8 (App. 2014). However, he does not develop this argument in any meaningful way and, accordingly, we will not address it. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).

¶6 Finally, Leary identifies several claims as purportedly "exempt from preclusion sanctions," because they were not raised "due to no fault of his own," citing Fay v. Noia, 372 U.S. 391 (1963). In Fay, the Supreme Court remarked that "[a] choice made by counsel not participated in by the petitioner does not automatically bar relief" on waiver grounds in a habeas proceeding. Id. at 439. But that case is distinguishable, not only because it addresses federal habeas relief rather than Arizona law, but also because it addresses the total failure to file an appeal, not the failure to raise certain issues on appeal. Id. at 394, 439.

¶7 Leary also briefly summarizes his claims of ineffective assistance of trial and appellate counsel. But, on review, he does not develop any meaningful argument that he is entitled to relief. He instead provides a litany of assertions largely unsupported by citation to the record or to controlling authority as required by Rule 32.9(c)(4)(B). Thus, he has not established that the trial court erred in rejecting these claims. And, finally, although Leary repeats his claim of ineffective assistance of Rule 32 counsel, the court was correct that this claim is not cognizable under Rule 32 for a non-pleading defendant like Leary. See State v. Escareno-Meraz, 232 Ariz. 586, ¶ 4 (App. 2013).

¶8 We grant review but deny relief.