State v. Mada-Robles

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

JESUS ALFONSO MADA-ROBLES, Petitioner.

No. 1 CA-CR 13-0744 PRPC
FILED 3-26-2015

Appeal from the Superior Court in Maricopa County
No. CR2006-148029-002 DT
The Honorable Sally Schneider Duncan, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Jesus Alfonso Mada-Robles, San Luis
Petitioner
 STATE v. MADA-ROBLES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the court in
which Judge Maurice Portley and Judge Jon W. Thompson joined.

G O U L D, Judge:

¶1 Petitioner Jesus Alfonso Mada-Robles petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief.

¶2 A jury convicted Mada-Robles of second degree murder and
three counts of aggravated assault. The trial court sentenced him to an
aggregate term of twenty years' imprisonment and we affirmed his
convictions and sentences on direct appeal. State v. Mada-Robles, 1 CA-CR
08-0648 (Ariz. App. Jul. 21, 2009) (mem. decision). Mada-Robles now seeks
review of the summary dismissal of his second petition for post-conviction
relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

¶3 In his petition for review, Mada-Robles presents a number of
claims of ineffective assistance of his trial counsel, his appellate counsel and
his first post-conviction relief counsel. We deny relief on these issues
because Mada-Robles could have raised these claims in a prior, timely post-
conviction relief proceeding.1 Any claim a defendant could have raised in
an earlier post-conviction relief proceeding is precluded. Ariz. R. Crim. P.
32.2(a). None of the exceptions under Rule 32.2(b) apply. Mada-Robles also
contends that the United States Supreme Court decision in Martinez v. Ryan,
__ U.S. __, 132 S.Ct. 1309 (2012), constitutes a significant change in the law
that allows him to raise these untimely claims. Mada-Robles is incorrect.
Martinez held, "[w]here, 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

1 The trial court dismissed Mada-Robles' first post-conviction relief
proceeding in May 2010.

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 STATE v. MADA-ROBLES
Decision of the Court

was ineffective." Martinez, __ U.S. at __, 132 S.Ct. at 1320. This simply
means Mada-Robles can seek habeas corpus relief in federal court based on
ineffective assistance of trial counsel if he can first show either he had no
counsel in his first post-conviction relief proceeding or counsel in his first
post-conviction relief proceeding was ineffective. Martinez does not require
a state court to consider all untimely claims of ineffective assistance of
counsel raised in post-conviction proceedings.

¶4 Mada-Robles further asserts the trial court erred when it
failed to conduct an inquiry into a pro se motion to substitute counsel
Mada-Robles filed during trial, and that the trial court erred when the court,
rather than the jury, determined the existence of aggravating factors for
sentencing purposes. We deny relief on these issues as well. We addressed
the motion for substitution on direct appeal, Mada-Robles at 4, ¶ 9, and
Mada-Robles could have raised the sentencing issue on direct appeal. Any
claim a defendant raised or could have raised on direct appeal is precluded.
Ariz. R. Crim. P. 32.2(a).

¶5 While the petition for review presents additional issues,
Mada-Robles did not raise those issues in the petition for post-conviction
relief he filed below. A petition for review may not present issues not first
presented to the trial court. State v. Ramirez, 126 Ariz. 464, 467 (App. 1980);
State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988); State v. Bortz, 169 Ariz. 575,
577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii).

¶6 We grant review and deny relief.

:ama

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