State v. Brooks

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL EUGENE BROOKS, Petitioner.

No. 1 CA-CR 23-0347 PRPC
FILED 3-12-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2011-007753-001
The Honorable Michael S. Mandell, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

Tait & Hall PLLC, Phoenix
By Ryan Tait, Elizabeth M. Mullins
Counsel for Petitioner

STATE v. BROOKS
Decision of the Court

MEMORANDUM DECISION

Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.

C A T L E T T, Judge:

¶1 Michael Brooks (“Brooks”) petitions for review from the
denial of his Motion for Forensic Examination of State’s Evidence (“Motion
to Examine”) and from the dismissal of his third notice of petition for post-
conviction relief (“PCR”) under Rules 32.1(e) and 32.1(h) (“Notice”). We
grant review but deny relief because Brooks’ Motion to Examine, upon
which his Notice was contingent, failed to make the requisite showing
under Rule 32.6(b)(2).

FACTS AND PROCEDURAL HISTORY

¶2 Following an investigation, police arrested Brooks for
possessing child pornography on an external hard drive found at his
residence. A jury found Brooks guilty on ten counts of sexual exploitation
of a minor. The superior court sentenced him to ten consecutive 12-year
terms in prison. This court affirmed Brooks’ convictions and sentences on
direct appeal, and the Arizona Supreme Court denied Brooks’ petition for
review. See State v. Brooks, 1 CA-CR 14-0298, 2015 WL 3618829, at *4 (Ariz.
App. June 9, 2015) (mem. decision).

¶3 Brooks then filed his first PCR notice in February 2016.
Several months later, Brooks filed a PCR petition, which he later amended,
asserting ineffective assistance of counsel and actual innocence. The
superior court dismissed Brooks’ first PCR petition because he failed to
state a colorable claim entitling him to relief. Brooks petitioned for review;
this court granted review but denied relief. See State v. Brooks, 2 CA-CR
2017-0325-PR, 2018 WL 286490 (Ariz. App. Jan. 4, 2018) (mem. decision).

¶4 In September 2018, Brooks moved to examine the hard drive
forensically, claiming it had “not been scrutinized in detail.” The superior
court denied Brooks’ request because he had “already gone through the
appeals process and the first post-conviction relief process,” and he had no
PCR notice or petition pending. So Brooks filed a second PCR notice,

2

STATE v. BROOKS
Decision of the Court

raising Rule 32.1(a), (e), and (h) claims. But the superior court dismissed
that PCR notice on various grounds.

¶5 Brooks later moved a second time to examine the hard drive.
The superior court initially granted the motion but later vacated it,
explaining that it could not grant discovery “when no pending action was
before the Court.”

¶6 In April 2023, Brooks filed the Notice at issue here, again
asserting claims under Rules 32.1(a), 32.1(e), and 32.1(h). Brooks claimed
his computer expert was “now in possession of recently developed
software” allowing “a more thorough review of the [] hard-drive” to prove
the illegal images were “inadvertently” downloaded and viewed during a
time when he has an alibi, “thereby establishing his actual innocence.” Five
days later, Brooks filed the Motion to Examine at issue here.

¶7 The superior court dismissed Brooks’ Rule 32.1(a) claim as
precluded but, “out of an abundance of caution,” gave Brooks 60 days to
brief his Rule 32.1(e) and Rule 32.1(h) claims. The court did not address the
Motion to Examine, so Brooks requested a ruling. The court denied the
Motion to Examine, concluding there was no PCR petition pending.
Contrary to its prior ruling, the court said it had instructed Brooks to file a
“[PCR petition] in support of the Rule 32.1(e) and Rule 32.1(h) claims no
later than 30 days” after the ruling. But the court explained that, in any
event, the Motion to Examine did not establish reasonable grounds to
believe the hard drive would lead to evidence material to Brooks’ PCR
claims.

¶8 Brooks moved for reconsideration, explaining that the court
had only partially dismissed his Notice and had given him 60 days to brief
his 32.1(e) and 32.1(h) claims. The court denied reconsideration,
disagreeing with Brooks’ assertion that the Notice remained pending. The
court explained that “this Ruling is intended to express with clarity that the
Motion for Reconsideration is denied, the Petition for Post-Conviction
Relief is denied and the Defendant’s [Motion to Examine] is denied.” The
court confirmed it based “this denial” on Brooks’ failure to show that
“review[ing] the hard drive would lead to material evidence being
discovered.”

¶9 Brooks petitions for review of the superior court’s denial of
the Motion to Examine and dismissal of the Notice. We grant review under
A.R.S. § 13-4239(C).

3

STATE v. BROOKS
Decision of the Court

DISCUSSION

¶10 We review the denial of PCR for an abuse of discretion. State
v. Reed, 252 Ariz. 236, 238 ¶ 6 (App. 2021). We also review a superior court’s
discovery ruling in a PCR proceeding for an abuse of discretion. Naranjo v.
Sukenic, 254 Ariz. 467, 472 ¶ 17 (2023). We review legal conclusions de novo.
Id.; State v. Macias, 249 Ariz. 335, 339 ¶ 8 (App. 2020).

I. Motion to Examine

¶11 Brooks’ Motion to Examine asserted that allowing his expert
to examine the hard drive would help him establish two defenses—lack of
knowing possession and alibi—he could not establish at trial “due to the
lack of scrutinous examination of the State’s evidence and the prior
limitations of computer forensic analysis.” A superior court “may allow
discovery for good cause.” Ariz. R. Crim. P. 32.6(b)(2). To establish good
cause, “the moving party must identify the claim to which the discovery
relates and reasonable grounds to believe that the request, if granted, would
lead to the discovery of evidence material to the claim.” Id. Brooks’ Motion
to Examine did not satisfy that standard.

¶12 Brooks asserts his newly discovered evidence is “learning that
Fry’s Electronics had previously sold numerous used computers and
external hard drives as purportedly ‘new’ during the same time frame that
[Brooks] bought the external hard drive in question.” Brooks provided no
evidentiary support for this allegation, let alone connected it to the
particular hard drive at issue in his case. Brooks’ unsupported allegation
that Fry’s sold used hard drives as new around the time Brooks purchased
the hard drive, without more, did not establish reasonable grounds to
believe Brooks unknowingly purchased a used hard drive already
containing child pornography. Ariz. R. Crim. P. 32.6(b)(2). This is
particularly true considering the superior court’s comment at trial that “the
evidence [Brooks] knowingly possessed the child pornography videos in
question was overwhelming[.]”

¶13 Brooks also asserted that advancements in forensic
technology since his conviction “allow for a more critical examination of the
hard drive, in comparison to [Brooks’] alibi—that he was at work . . . at the
times the pornographic videos were said to be viewed.” Yet Brooks did not
establish that any such advancement would produce newly discovered
evidence under Rule 32.1(e). See State v. King, 250 Ariz. 433, 442 ¶ 37 (2021)
(“Rule 32.1(e) demands that petitioners offer actual new evidence to secure
a new trial in post-conviction proceedings—not for PCR counsel to unearth

4

STATE v. BROOKS
Decision of the Court

new experts after trial who examine the same record as their pretrial
counterparts and reach different conclusions[.]”). The motion failed to
establish, for example, that examining the hard drive would prove Brooks’
location when the pornographic images were downloaded or viewed.
Moreover, Brooks did not provide a description of any technological
advancement allowing him to discover new and material evidence. During
trial proceedings, the superior court observed, “Besides [Brooks], no one
was identified with any modicum of credibility to have access to [Brooks’]
computer on the dates and times in question.” Brooks did not establish in
the Motion to Examine that, since his trial, technological advancements
have occurred that would result in evidence tending to prove that someone
entered his residence when he was not there, accessed his hard drive,
downloaded hundreds of files containing child pornography, and then left
undetected.

¶14 Brooks’ claim that a forensic examination of the hard drive
would help establish a lack of knowledge or the existence of an alibi did
not, without evidentiary support, establish reasonable grounds to believe
such an examination would lead to new and material evidence. Ariz. R.
Crim. P. 32.6(b)(2). Though “‘materiality’ is not a stricter principle than
relevancy, [and need not be] something of especially high probative value,”
Naranjo, 254 Ariz. at 473 ¶ 23, generalized speculation is not “good cause”
under Rule 32.6(b)(2). The superior court did not abuse its discretion in
denying the third Motion to Examine.

II. Rule 32.1(e) and 32.1(h) Claims

¶15 In his Notice, Brooks claimed newly discovered material facts
supported relief under Rule 32.1(e), and that he was innocent under Rule
32.1(h). A defendant is entitled to relief under 32.1(e) if “newly discovered
material facts probably exist, and those facts probably would have changed
the judgment or sentence.” Ariz. R. Crim. P. 32.1(e). To establish a claim
under Rule 32.1(h), a defendant must demonstrate “by clear and convincing
evidence that the facts underlying the claim would be 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). Neither claim is
“subject to preclusion under Rule 32.2(a)(3).” Ariz. R. Crim. P. 32.2(b).

¶16 Brooks concedes “access to the hard drive must first be
granted in order for [him] to assert the grounds for relief.” Thus, Brooks’
remaining Rule 32 claims were contingent on examining the hard drive.
And Brooks has not raised any other colorable basis for PCR, including
under Rule 32.1(a). Because the court did not abuse its discretion in

5

STATE v. BROOKS
Decision of the Court

denying the Motion to Examine, the court did not abuse its discretion in
denying Brooks’ Rule 32 claims—regardless of whether Brooks had 30 or
60 days to file a petition supporting those claims.

CONCLUSION

¶17 We grant review but deny relief.

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

6