State v. Gray

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEMOORE TERRELLE GRAY, Petitioner.

No. 1 CA-CR 19-0324 PRPC
FILED 4-30-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2017-133594-001
The Honorable Gregory Como, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Demoore Terrelle Gray, Tucson
Petitioner

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop, Judge Maria Elena Cruz, and Judge
David B. Gass delivered the decision of the Court.

STATE v. GRAY
Decision of the Court

PER CURIAM:

¶1 Demoore Terrelle Gray petitions this court for review from
the dismissal of his petition for post-conviction relief (“PCR”) filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 33.1 We have
considered the petition and, for the reasons stated, grant review and deny
relief.

¶2 Gray pleaded guilty to theft of means of transportation and
was subsequently sentenced on August 13, 2018, to 4.5 years’
imprisonment. On April 18, 2019, Gray filed an untimely notice of post-
conviction relief (“Notice”), referring generally to a purported deficiency in
his waiver of rights when he pleaded guilty. Gray also asserted his sentence
was improper because the superior court allegedly considered an
“inelligable [sic] prior conviction.” Further, Gray stated his forthcoming
petition would raise both an equal protection claim and a challenge to the
superior court’s jurisdiction. Finally, Gray explained the untimeliness of
the Notice was not his fault but “[d]ue to the lack of a law library here in
ADOC.”

¶3 The superior court summarily dismissed the Notice because
Gray failed to adequately explain why it was over five months late. See
Ariz. R. Crim. P. 33.2(b)(1), 33.4(b)(3)(A), (D). Gray timely filed a petition
for review.

¶4 We review the superior court’s dismissal order for an abuse
of discretion, Ariz. R. Crim. P. 33.2(b)(1), 33.4(b)(3)(D), which is Gray’s
burden to establish. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).
Abuse of discretion is “an exercise of discretion [that] is manifestly
unreasonable, exercised on untenable grounds or for untenable reasons.”

1 Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. See Order Abrogating Current Rule 32 of the
Arizona Rules of Criminal Procedure and Adopting New Rule 32 and Rule
33 and Related Provisions, Arizona Court Order No. R-19-0012 (Adopted
Aug. 29, 2019). The rules relating to defendants who plead guilty are now
codified in Rule 33. The amended rules apply to all cases pending on the
effective date unless a court determines that “applying the rule or
amendment would be infeasible or work an injustice.” Order at 2. Because
there were no substantive changes to the respective rules related to this
decision, we apply and cite to the current rules.

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STATE v. GRAY
Decision of the Court

State v. Woody, 173 Ariz. 561, 563 (App. 1992) (quoting Williams v. Williams, 166 Ariz. 260, 265 (App. 1990)).

¶5 To pursue post-conviction relief, a pleading defendant
generally must file a notice within ninety days after the oral
pronouncement of sentence. Ariz. R. Crim. P. 33.1, 33.4(b)(3)(A). The court
may summarily dismiss a notice as untimely if it is not filed within ninety
days, State v. Rosario, 195 Ariz. 264, 266, ¶ 7 (App. 1999), unless the
defendant “adequately explains why the failure to timely file a notice was
not the defendant’s fault.” Ariz. R. Crim. P. 33.4(b)(3)(D); see also Ariz. R.
Crim. P. 33.2(b)(1). When making certain claims that are specified in the
Rule—including a challenge to the court’s jurisdiction—a pleading
defendant must file a notice “within a reasonable time after discovering the
basis for the claim” and “explain the reasons for not raising the claim . . . in
a timely manner.” Ariz. R. Crim. P. 33.4(b)(3)(B), 33.2(b)(1). A failure to
provide an adequate explanation provides the superior court with
discretion to summarily dismiss the notice. Ariz. R. Crim. P. 33.2(b)(1).

¶6 Gray explained the untimeliness of his Notice as follows:

The defendant claims that he is not liable for any delayed
claim. Due to the lack of a law library here in ADOC. [sic]
The defendant claims that his delay in filing his notice of post-
conviction relief was no fault of his own. The defendant
claims that he has been victimized a [sic] prejudiced because
the institutions fail to provide case law or anything to base
any points of authority on.

¶7 The superior court’s summary dismissal of the Notice was not
an abuse of discretion. Based on his explanation, Gray clearly knew the
Notice was late.2 Merely mentioning the “lack of a law library” does not
explain the untimeliness, nor does his assertion on review that he was
“forced to create” a form PCR notice because the superior court did not

2 The record also reflects that at sentencing the superior court supplied
Gray with a form titled “Notice of Rights of Review after Conviction in
Superior Court.” That form expressly informs defendants their PCR notices
must be filed within ninety days of sentencing. See Ariz. R. Crim. P. Form
23 (2018). Although the court acknowledged it did not obtain Gray’s
signature apparently confirming his receipt of the form, Gray did not assert
in his Notice that he was unaware of the requirement it be filed within
ninety days of sentencing.

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STATE v. GRAY
Decision of the Court

provide him one. Thus, as the superior court correctly noted, Gray failed
to adequately explain why he filed the Notice over five months after it was
due. Gray has not established an abuse of discretion.

¶8 Regarding Gray’s other arguments in the petition for review,
his unsupported assertion that the superior court’s dismissal of the Notice
was “bias[ed]” fails to overcome the presumption that the court was
unbiased. See State v. Carver, 160 Ariz. 167, 173 (1989) (“Bare allegations of
bias and prejudice, unsupported by factual evidence, are insufficient to
overcome the presumption of impartiality . . . .”); State v. Curry, 187 Ariz.
623, 631 (App. 1996) (“Disagreements over rulings are insufficient to
support recusal [on basis of purported judicial bias].”).

¶9 We further reject Gray’s argument that he is entitled to relief
because the State did not “raise a defense of untimeliness.” Gray cites no
authority for the proposition that an untimely notice requires a response
before the court may dismiss it, and his reliance on Eberhart v. United States, 546 U.S. 12 (2005), is unavailing. In that federal criminal case, the United
States Supreme Court concluded the government could not, for the first
time on appeal, raise the defendant’s untimeliness in seeking a new trial as
a basis for finding the district court lacked jurisdiction to grant the new trial
motion. Eberhart, 546 U.S. at 14-20 (rejecting government’s argument that
district court lacked jurisdiction to consider defendant’s untimely
supplemental new trial motion and concluding federal procedural time-
limit rule is not a jurisdictional one that can be raised at any time, but rather
is a “claim-processing rule” that the government was required to raise in
district court). Here, Gray failed to comply with a state procedural rule’s
time requirement for providing notice that he intended to seek relief from
his guilty plea. And nothing in Rule 33 contemplates a response to a notice
for post-conviction relief. See Ariz. R. Crim. P. 33.4.

¶10 We grant review and deny relief.

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

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