State v. Salazar-Rosas

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

OSMAN SALAZAR-ROSAS, Petitioner.

No. 1 CA-CR 18-0721 PRPC
FILED 4-16-2019

Petition for Review from the Superior Court in Maricopa County
No. CR2012-006372-040
The Honorable Peter A. Thompson, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Castaneda Law, Phoenix
By Oscar Agustin Castaneda
Counsel for Petitioner
 STATE v. SALAZAR-ROSAS
Decision of the Court

MEMORANDUM DECISION

Judge James P. Beene delivers the decision of the Court, in which Presiding
Judge David D. Weinzweig and Judge Kent E. Cattani joined.

B E E N E, Judge:

¶1 Osman Salazar-Rosas petitions this Court for review from the
dismissal of his of-right petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2012, Salazar-Rosas was charged with multiple offenses
including the sale or transportation of marijuana. Before trial, Salazar-
Rosas filed multiple motions to suppress wiretap recordings because the
process of obtaining and sealing the recordings violated federal law,
specifically 18 United States Code (“U.S.C.”) sections 2516(2) and
2518(8)(a). The superior court denied the motions, finding the State
properly complied with Arizona Revised Statutes (“A.R.S.”) section 13-
3010. Salazar-Rosas subsequently pled guilty to multiple charges,
including sale or transportation of marijuana.

¶3 Salazar-Rosas filed a timely petition for post-conviction relief
in 2017, but the superior court dismissed the petition. Before ruling on the
first petition, however, the court received another petition for post-
conviction relief. In response, the court reinstated Salazar-Rosas’ initial
post-conviction relief proceeding. The court then dismissed the reinstated
petition, and Salazar-Rosas now seeks review. We have jurisdiction
pursuant to Arizona Rule of Criminal Procedure 32.9(c) and A.R.S. § 13-
4239(C).

DISCUSSION

¶4 Salazar-Rosas requests relief based on a significant change in
the law. In Villa v. Maricopa County, 865 F.3d 1224, 1237 (9th Cir. 2017), the
Ninth Circuit Court of Appeals held that 18 U.S.C. § 2516(2) preempts
A.R.S. § 13-3010(A). Salazar-Rosas argues the Villa opinion would have
changed the rulings on the motions to suppress. We disagree. The Villa

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Decision of the Court

opinion is not binding on state courts. See State v. Gates, 118 Ariz. 357, 359
(1978). Additionally, our Court has already held that Arizona’s statute
substantially complies with 18 U.S.C. § 2516(2). State v. Verdugo, 180 Ariz.
180, 183 (App. 1993). Further, by pleading guilty, Salazar-Rosas waived all
challenges to non-jurisdictional defects in the superior court proceedings.
See State v. Reed, 121 Ariz. 547, 548 (App. 1979). We find no error in the
superior court’s denial of relief.

¶5 Salazar-Rosas also argues an affidavit by the Maricopa
County Attorney, William Montgomery, constitutes newly discovered
evidence warranting relief. In 2011, Montgomery signed a notarized
document authorizing deputy county attorneys to apply for an ex parte
order for interception of telephonic communications. The application
sought to investigate certain individuals, but it did not identify Salazar-
Rosas. It did mention “other known and unknown co-conspirators,”
however. In a 2017 affidavit, Montgomery stated he personally reviewed
the original applications for the wiretaps. Salazar-Rosas argues that
Montgomery’s reference to only the original application means he did not
review additional applications involving Salazar-Rosas. He claims the lack
of Montgomery’s review makes it “very likely” the superior court would
have suppressed the evidence.

¶6 To obtain relief based on newly discovered evidence, the
petitioner must establish “newly discovered material facts probably exist
and those facts probably would have changed the verdict or sentence.”
Ariz. R. Crim. P. 32.1(e). Here, Salazar-Rosas cannot establish the facts
probably would have changed the outcome of the case. Arizona law
requires the County Attorney to designate, in writing, a prosecuting
attorney to apply for an ex parte order for the interception of telephonic
communications. A.R.S. § 13-3010(A). When Montgomery signed the
notarized document authorizing the deputy county attorneys to apply for
an ex parte order and modifications or extensions to the order, the State
complied with the statute. Montgomery’s alleged failure to review
additional applications does not violate the statute.

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Decision of the Court

CONCLUSION

¶7 For the foregoing reasons, we grant review and deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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