State v. Jimenez

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

No. 1 CA-CR 24-0132 PRPC
FILED 04-17-2025

Petition for Review from the Superior Court in Maricopa County
No. CR 1987-002432
The Honorable Sam J. Myers, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Petitioner
 STATE v. JIMENEZ
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Vice Chief Judge Randall M. Howe and Judge Andrew M. Jacobs
joined.

B A I L E Y, Judge:

¶1 Jesus Rodriguez Jimenez petitions for review from the
superior court’s order dismissing his petition requesting post-conviction
relief (“PCR”) filed under Arizona Rule of Criminal Procedure (“Rule”) 32.
We have considered the petition for review, and for the reasons stated,
grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 1987, a jury convicted Jimenez of first-degree murder and
kidnapping. He was sentenced to death on the murder count and a
consecutive, aggravated sentence of 22 years on the kidnapping count.

¶3 Because Jimenez was sentenced to death, his convictions were
automatically appealed to the Arizona Supreme Court. See Ariz. R. Crim.
P. 31.2(b) and A.R.S. § 13-4033. Our supreme court affirmed Jimenez’s
convictions, but modified his murder sentence, reducing it from death to
life imprisonment without possibility of parole until Jimenez served 35
years. State v. Jimenez, 165 Ariz. 444, 460 (1990).

¶4 Years later, following the United States Supreme Court’s
decision in Miller v. Alabama, 567 U.S. 460 (2012), Jimenez filed his first
timely1 PCR petition. Jimenez argued he was entitled to relief under Rule
32.1(g) because Miller constituted a significant change in the law. Jimenez
also claimed he was entitled to relief under Rule 32.1(a) because he received
ineffective assistance of counsel (“IAC”). The superior court dismissed his
petition, finding Miller did not apply. Jimenez moved for reconsideration.
The superior court held an informal conference after ordering supplemental

1 Before September 30, 1992, there was no time limit for a defendant to file

their first notice of post-conviction relief. See Moreno v. Gonzalez, 192 Ariz.
131, 134-35, ¶¶ 21-23 (1998). Jimenez was sentenced in 1988, so his petition
is timely.

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briefing from Jimenez and the State, and found Jimenez had presented a
colorable claim for relief, entitling him to an evidentiary hearing. The
superior court allowed Jimenez to present his Miller claim and his IAC
claim during the evidentiary hearing.

¶5 In March 2017, the superior court consolidated Jimenez’s PCR
petition with several PCR petitions from similarly situated defendants, all
of whom were arguing they were entitled to relief because Miller
constituted a substantial change in the law. Each petition was stayed
pending the United States Supreme Court’s decision in Mathena v. Malvo, 586 U.S. 1221 (2019) (dismissed by 140 S. Ct. 919 (2020)). Later, the superior
court extended the stay pending the United States Supreme Court’s
decision in Jones v. Mississippi, 593 U.S. 98 (2021), and the Arizona Supreme
Court’s decision in the joined cases of State v. Clay, State v. Kasic, and State
v. Soto-Fong (collectively, State v. Soto-Fong, 250 Ariz. 1 (2020)).

¶6 In July 2022, Jimenez supplemented his PCR petition, and the
state responded. In September 2023, the superior court heard oral
argument on Jimenez’s PCR claims and dismissed his petition. This
petition for review followed.

DISCUSSION

¶7 We review the dismissal of a petition for post-conviction relief
for an abuse of discretion, “which occurs if the court makes an error of law
or fails to adequately investigate the facts necessary to support its decision.”
State v. Bigger, 251 Ariz. 402, 407, ¶ 6 (2021).

I. Jimenez’s sentences do not amount to a de facto life sentence.

¶8 Jimenez argues his sentences violate the Eighth Amendment’s
prohibition against “cruel and unusual punishment” because he was a
juvenile when he was convicted, and the sentences exceed his life
expectancy. Our supreme court, however, has found that this type of
sentence does not violate the Eighth Amendment. See Soto-Fong, 250 Ariz.
at 3, ¶ 1 (2020). Jimenez acknowledges we are bound by our supreme
court’s decision in Soto-Fong and has raised the issue to preserve it for his
eventual federal habeas corpus petition. Accordingly, he has not presented
a ground for relief.

II. Jimenez did not receive ineffective assistance of counsel.

¶9 To state a colorable IAC claim, Jimenez “must show both that
counsel’s performance fell below objectively reasonable standards and that

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this deficiency prejudiced [him].” State v. Bennett, 213 Ariz. 562, 567, ¶ 21
(2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

¶10 Jimenez claims he received ineffective assistance of trial and
appellate counsel because both failed to present mitigation evidence for his
kidnapping charge during sentencing and on direct appeal. But a fair
reading of the record and the sentencing transcript do not support
Jimenez’s argument. At the outset of sentencing, the superior court stated
that it had read and considered the presentence report. The presentence
report detailed the aggravating and mitigating circumstances applicable to
the murder and kidnapping charges, and recommended Jimenez be
sentenced to an aggravated prison term for the kidnapping charge. Both
parties also presented aggravation or mitigation evidence at the sentencing
hearing.

¶11 But Jimenez appears to argue that his attorney had to present
his mitigation evidence separately for the murder and kidnapping charges
if he wanted the court to consider the evidence for both charges. Not so.
The parties were not obligated to present their aggravating or mitigating
evidence separately for the murder and kidnapping charges, and more
importantly, the superior court was not limited to considering the evidence
only for the murder charge. See State v. Gillies, 142 Ariz. 564, 573 (1984).

¶12 Because mitigating evidence was presented for both the
murder and kidnapping charges and because the superior court considered
the evidence for both charges, trial counsel’s performance did not fall below
objectively reasonable standards. Thus, Jimenez’s IAC claim fails.

¶13 Jimenez also asserts that he received ineffective assistance
from appellate counsel because he did not raise the mitigation argument for
the kidnapping charge with the Arizona Supreme Court. “The
determination of what issues are appealable in view of the trial record is a
matter of appellate counsel’s judgment . . . .” State v. Herrera, 183 Ariz. 642,
647 (App. 1995) (citation omitted). And our supreme court has “never held
that counsel must raise every possible or even meritorious issue on appeal.”
Id. (citations omitted). Here, appellate counsel raised “numerous issues in
his opening brief.” Jimenez, 164 Ariz. at 447. Thus, appellate counsel’s
representation did not fall below objectively reasonable standards by
failing to raise a claim related to Jimenez’s kidnapping sentence.

¶14 Even assuming appellate counsel’s representation did fall
below objectively reasonable standards, Jimenez’s claim fails for lack of
prejudice. To prove prejudice, a defendant must demonstrate there is a

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“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at
694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Miller, 251 Ariz. 99, 104, ¶ 17 (2021)
(citation omitted).

¶15 To prevail on his IAC claim, Jimenez must prove that had
appellate counsel presented the mitigation argument to the supreme court,
his kidnapping sentence would have been different. But he is unable to do
so because he would first need to prove that the supreme court would have
addressed the issue. Although appellate counsel raised numerous claims
in his opening brief, our supreme court chose to address only two. Jimenez,
164 Ariz. at 447. To assume that the supreme court would have accepted
review of the kidnapping issue, when it declined to address several
properly raised issues, is speculative, and prejudice cannot be based on
speculation. See State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999).
Jimenez’s IAC claim fails.

CONCLUSION

¶16 We grant review and deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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