State of Arizona v. Ramon Escareno Meraz

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, )

) OPINION

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.

¶1 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

abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.

2007). We grant review but deny relief.

¶2 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).

¶3 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 Martinez did not alter the longstanding Arizona rule that

a non-pleading defendant “may not assert a claim of ineffective assistance of post-

conviction counsel.”

2

¶4 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, 185 Ariz. 319,

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 Martinez,

we should extend the right to effective assistance of Rule 32 counsel to non-pleading

defendants. In Martinez, 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.

¶5 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

3

may assert a claim of ineffective assistance of trial counsel. Id. at ___, 132 S. Ct. at

1315.

¶6 Thus, Martinez 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, 205 Ariz. 285,

¶ 15, 69 P.3d 1006, 1009 (App. 2003) (court of appeals may not disregard decisions of

supreme court).

¶7 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 Martinez is

held applicable to those who go to trial.” Nothing in those decisions supports Escareno-

Meraz’s argument.

4