State v. Jacobs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANNY JACOBS, Petitioner.

No. 1 CA-CR 23-0167 PRPC
FILED 9-26-2023

Petition for Review from the Superior Court in Maricopa County
No. CR2013-425900-001
The Honorable Kerstin G. LeMaire, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow
Counsel for Respondent

Federal Public Defender, Phoenix
By Molly A. Karlin
Counsel for Petitioner
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge D. Steven Williams and Judge Samuel A. Thumma joined.

M c M U R D I E, Judge:

¶1 Danny Jacobs petitions this court to review the superior
court’s dismissal of his petition for post-conviction relief (“PCR”) filed
under Arizona Rule of Criminal Procedure (“Rule”) 32.1 and the denial of
his reconsideration motion. We grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2014, a jury convicted Jacobs of kidnapping his minor
daughter. The court sentenced him to ten years’ imprisonment. Jacobs
appealed his conviction, and this court affirmed. State v. Jacobs, 1 CA-CR
14-0433, 2015 WL 7300951, at *1, ¶ 1 (Ariz. App. Nov. 19, 2015) (mem.
decision). Post-conviction counsel then filed a Notice of Completion, stating
he found no grounds for relief, so Jacobs filed a pro se PCR petition.

¶3 In the PCR petition, Jacobs claimed that his trial counsel
rendered ineffective assistance by not convincing him to take the State’s
plea offer. Jacobs noted, “[t]he evidence of guilt was overwhelming
guaranteeing a conviction beyond a reasonable doubt and to a moral
certainty.” The superior court dismissed the petition, and Jacobs sought
review. This court granted review but denied relief. State v. Jacobs, 1 CA-CR
16-0689 PRPC, 2017 WL 6345912, at *1, ¶ 4 (Ariz. App. Dec. 12, 2017) (mem.
decision). The Arizona Supreme Court denied review.

¶4 Jacobs petitioned for habeas review under 28 U.S.C. § 2254.
Jacobs v. Shinn, CV-18-01628-PHX-JGZ, 2021 WL 4439457, at *1 (D. Ariz.
Sept. 28, 2021). The district court and the Ninth Circuit denied a certificate
of appealability. Id. at *7; Jacobs v. Att’y Gen. for Ariz., 21-16595, 2022 WL
4563748, at *1 (9th Cir. June 10, 2022). The Ninth Circuit appointed Jacobs a
federal public defender to file a petition for a writ of certiorari to the
Supreme Court. Less than two months after her appointment, the federal
public defender moved the district court for authorization to represent
Jacobs in state court to pursue a state claim, and the district court granted
the motion.

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¶5 Jacobs then filed his notice requesting post-conviction relief
using Form 24(b)1 to Rule 41. In his form, Jacobs claimed the error arose
under Rule 32.1(b)–(h) as “[t]here is clear and convincing evidence that the
facts underlying the Defendant’s claim are sufficient to establish that no
reasonable fact-finder would find the Defendant guilty of the offense
beyond a reasonable doubt[.]” The superior court dismissed Jacobs’ PCR
notice, finding that Jacobs “provide[d] no facts or law to support the Rule
32.1(h) claim.” It held that “Defendant must assert substantive claims and
adequately explain the reasons for their untimely assertion.”

¶6 Jacobs moved for reconsideration, arguing that (1) his Form
24(b) filing complied with the content requirements for a notice; (2) his Rule
32.1(h) claim is a substantive ground for relief; and (3) his claim was timely.
In the reconsideration motion, he included the facts and law he believed
supported his actual innocence claim. The superior court denied the motion
for reconsideration.

¶7 Jacobs seeks review of the PCR dismissal and the denial of the
reconsideration motion. We have jurisdiction under A.R.S. §§ 13-4031,
13-4239, and Rule 32.16(a)(1).2 We grant review but deny relief.

DISCUSSION

¶8 We will not disturb the superior court’s ruling absent an
abuse of discretion. State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007). And
“[w]e will affirm a trial court’s decision if it is legally correct for any
reason.” State v. Roseberry, 237 Ariz. 507, 508, ¶ 7 (2015) (citing State v. Perez, 141 Ariz. 459, 464 (1984)). The petitioner must show that the superior court
abused its discretion by denying the PCR petition. See State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2011).

¶9 Rule 32.1 sets forth several grounds that entitle a defendant to
post-conviction relief, including when “the defendant demonstrates by
clear and convincing evidence that the facts underlying the claim would be

1 On August 30, 2023, Arizona Supreme Court Administrative Order
No. 2023-140 amended Form 24(b) “to provide a space for defendants filing
a successive Notice Requesting Post-Conviction Relief to explain why the
claim was not raised in a previous notice or petition.”

2 We deny Jacobs’ request for oral argument because the issues are
adequately briefed, and oral argument would not help resolve the claims.

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sufficient to establish that no reasonable fact-finder would find the
defendant guilty of the offense beyond a reasonable doubt.” Ariz. R. Crim.
P. 32.1(h).

¶10 Jacobs correctly points out that Rule 32.1(h) claims are not
subject to preclusion under Rule 32.2(a)(3). Ariz. R. Crim. P. 32.2(b). But that
is not to say that such claims are never subject to dismissal. Rule 32.2(b)
provides:

[W]hen a defendant raises a claim that falls under Rule 32.1(b)
through (h) in a successive or untimely post-conviction
notice, the defendant must explain the reasons for not raising
the claim in a previous notice or petition, or for not raising the
claim in a timely manner. If the notice does not provide
sufficient reasons why the defendant did not raise the claim
in a previous notice or petition, or in a timely manner, the
court may summarily dismiss the notice.

Id. (emphasis added).

¶11 Jacobs asserts that his Form 24(b) filing was sufficient notice
of the PCR petition to follow. Generally, Form 24(b) alone is enough to
begin a PCR proceeding. But where, as here, a defendant’s PCR is either
untimely or successive, Rule 32.2(b) requires more explanation than Jacobs’
notice provided.3

¶12 Jacobs argues that the superior court incorrectly labeled his
notice “untimely.” We disagree. Jacobs’ claim could have been raised in his
first PCR petition. Thus, the claim was untimely raised. And because Jacobs
had filed a petition, the notice was also successive. See Ariz. R. Crim. P.
32.2(b). So, in his notice, Jacobs needed to explain why he did not raise his
claim for actual innocence in his previous PCR petition. Because Jacobs
failed to do so, the superior court did not abuse its discretion by dismissing
the notice.

3 Jacobs argues that, if more information was required beyond that of
the prior Form 24(b), then that form was “materially misleading.” This
argument is not persuasive, particularly for a represented litigant. Rule 32.2
governs preclusion, not the form, and the rule is unambiguous in its
requirement that a defendant explain the reasons for not raising his claim
previously. See Ariz. R. Crim. P. 32.2(b).

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¶13 Jacobs’ reconsideration motion does not save his claim for
post-conviction relief. Instead, it rehashes his argument that his Form 24(b)
notice was sufficient and that his notice was timely, meaning he did not
have to explain the untimeliness. In his motion to reconsider and as part of
his timeliness argument, Jacobs claims that he could not have discovered
his actual innocence claim (or included it in the original PCR petition)
without the assistance of counsel, which he now has. We reject his excuse
as an adequate explanation for his failure to raise the actual innocence claim
in his previous petition. He had counsel in the original post-conviction
proceedings, and that counsel did not raise the claim. And Jacobs cannot
claim his previous counsel was ineffective for failing to raise the claim. See
State v. Evans, 252 Ariz. 590, 598, ¶ 25 (App. 2022) (The 2020 revisions to
Rule 32 did not alter the longstanding rule that “non-pleading defendants
may not raise an ineffective assistance claim against prior PCR counsel.”).

¶14 While the superior court did not abuse its discretion by
dismissing the notice, we also note that this court previously rejected the
substance of Jacobs’ claim of actual innocence.

Jacobs argues the State’s evidence was insufficient to prove
that he acted with the intent to hold his daughter “for ransom,
as a shield or hostage.” A.R.S. § 13–1304(A)(1). Jacobs claims
“[t]here was no evidence that [he], by word or deed, used his
daughter to hold the police at bay,” so there was no evidence
that Jacobs intended to use her as a shield. The evidence at
trial, however, showed Jacobs did not leave the house or
allow his daughter out of the house for several hours, despite
persistent requests by the police that he do so. Multiple
officers testified to Jacobs’ repeated screams that they would
have to kill him in front of his daughter if they came into the
house. At the very least, this evidence allowed the jury to infer
that Jacobs was holding his daughter “as a shield or hostage.”
A.R.S. § 13–1304(A)(1). “When reasonable minds may differ
on inferences from the facts, the case must be submitted to the
jury, and the trial judge has no discretion to enter a judgment
of acquittal.” [State v. Lee, 189 Ariz. 608, 615 (1997)]. Thus, the
superior court did not err by denying Jacobs’ motion for
judgment of acquittal.

Jacobs, 1 CA-CR 14-0433, at *2, ¶ 7. Jacobs is not innocent of the crime. See
State v. Evans, 252 Ariz. 590, 598, ¶ 30 (App. 2022) (“Restating arguments
about the trial record does not establish a Rule 32.1(h) claim.”).

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CONCLUSION

¶15 We grant review but deny relief.

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

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