State v. Lewis

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GABRIEL L. LEWIS, Petitioner.

No. 1 CA-CR 24-0499 PRPC
FILED 04-01-2025

Petition for Review the Superior Court in Maricopa County
No. CR2022-101444-001
The Honorable Chuck Whitehead, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

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

Gabriel Lawrence Lewis, Phoenix
Petitioner

STATE v. LEWIS
Decision of the Court

MEMORANDUM DECISION

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

J A C O B S, Judge:

¶1 Gabriel Lewis petitions this Court for review from the
superior court’s dismissal of his first petition for post-conviction relief
under Arizona Rule of Criminal Procedure (“Rule”) 33. For the following
reasons, we grant review but deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In January 2022, Lewis was approached by an officer for
suspected criminal trespassing. Following a records check, the officer
arrested Lewis because he had an active misdemeanor warrant. Officers
conducted a search incident to arrest on Lewis, in which they found three
blue pills. He was then transported to the police station where a folded ten-
dollar bill fell from his underwear. There was a crystal white substance
inside the bill, later confirmed to be methamphetamine. The officer noted
in his probable cause statement that Lewis was documented into “Gangnet”
as a “Paisas gang member and Arizona Mexican Mafia gang member.”

¶3 That day, the State charged Lewis with third-degree criminal
trespass, a class three misdemeanor, and possession or use of dangerous
drugs, a class four felony. A supervening indictment filed in August 2022
charged Lewis only with possession or use of dangerous drugs, a class four
felony.

¶4 On April 19, 2023, Lewis entered a plea, agreeing to plead
guilty to possession or use of dangerous drugs, a class four felony. See
A.R.S. § 13-3401. Thereafter, the superior court sentenced Lewis to three
years supervised probation starting October 11, 2023, requiring Lewis to
serve ten months in county jail with 260 days credit starting that day. His
presentence credit was later corrected to 278 days.

¶5 On October 23, 2023, Lewis filed his first petition for post-
conviction relief under Rule 33. He alleged: (1) his plea was obtained in
violation of the United States or Arizona constitutions, as he was denied the

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STATE v. LEWIS
Decision of the Court

right to representation by a competent and effective lawyer; (2) his plea was
in violation other rights; (3) the court did not have subject matter
jurisdiction to render judgment or impose a sentence; and (4) newly
discovered material facts probably exist, and those facts would have
changed the judgment or sentence. Thereafter, the court appointed Rule 33
counsel.

¶6 On February 22, 2024, Rule 33 counsel filed her Notice of
Completion of Post-Conviction Review by Counsel and Request for 45 Day
Extension of Time to Allow Defendant to File Pro Per Petition for Post-
Conviction Relief. Counsel informed the court she had “not identified any
colorable claims for [post-conviction] relief.” The court then ordered Lewis
to file a pro per petition for post-conviction relief no later than April 22,
2024, and required defense counsel to remain in an advisory capacity.

¶7 On March 1, 2024, the State filed a petition to revoke Lewis’
probation alleging he had committed several felonies.

¶8 On April 3, 2024, Lewis moved for discovery, seeking
“discovery from intel gang unit as of [his] affiliation to the Mexican mafia.”
On April 17, 2024, Lewis, then in custody, filed his pro per petition for Rule
33 relief. He alleged ineffective assistance of post-conviction relief counsel
and trial counsel, as they did not help him rebut the claim that he was a
member of the Mexican mafia, which he asserts was the basis of his arrest.
He alleges his Second and Fourth Amendment rights were violated through
a prior assault charge and in his current case. He also asked the court to
remove his “improper party status” as a Mexican mafia member, indicating
the officer’s probable cause statement from his arrest suggested he was
gang-affiliated, which Lewis asserted was false. He contended the warrant
for his arrest should have been quashed, making his arrest unlawful. The
court dismissed Lewis’ petition, finding no colorable claim for relief. Lewis
sought review, and we have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §
13-4239(C).

DISCUSSION

¶9 Lewis argues the superior court erred by dismissing his Rule
33 petition for post-conviction relief because: (1) both his trial counsel and
post-conviction relief counsel were ineffective; (2) he was unlawfully
arrested; (3) he was denied discovery and disclosure; and (4) the court failed
to remove his “improper party status.”

¶10 Absent an abuse of discretion or error of law, this Court will
not disturb a superior court’s ruling on a petition for post-conviction relief.

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STATE v. LEWIS
Decision of the Court

See State v. Gutierrez, 229 Ariz. 573, 577 ¶ 19 (2012). It is petitioner’s burden
to show that the superior court abused its discretion by denying the petition
for post-conviction relief. See State v. Poblete, 227 Ariz. 537, 538 ¶ 1 (App.
2011) (recognizing that petitioner has burden of establishing abuse of
discretion on review). The superior court may dismiss a petition if it fails
to state a colorable claim for post-conviction relief. State v. Kolmann, 239
Ariz. 157, 160 ¶ 8 (2016); Ariz. R. Crim. P. 33.11(a). Lewis fails to show any
abuse of discretion in his petition.

¶11 First, Lewis is precluded from arguing in his petition that trial
counsel failed to obtain discovery or disclosure and that he was denied
discovery or disclosure because he waived his right to discovery by
entering a guilty plea. Ariz. R. Crim. P. 33.2(a)(1); see also Canion v. Cole, 210
Ariz. 598, 599-600 ¶¶ 7, 9 (2005) (finding post-conviction relief rules provide
no process for obtaining discovery and impose no disclosure obligations).

¶12 Second, Lewis cannot assert ineffective assistance of post-
conviction relief counsel because the first petition is currently on review
and post-conviction relief counsel is serving in advisory capacity. See Ariz.
R. Crim. P. 33.2(b)(2) (“A defendant is not precluded from filing a timely
second notice requesting post-conviction relief claiming ineffective
assistance of counsel in the first Rule 33 post-conviction proceeding.”); State
v. Mendoza, 249 Ariz. 180, 184 ¶ 12 (App. 2020) (stating defendant cannot
bring a claim of ineffective assistance of counsel for Rule 33 counsel in first
proceeding for post-conviction relief).

¶13 Third, Lewis argues he was unlawfully arrested as the warrant
for his arrest was invalid because it should have been quashed after he was
jailed for assault. He also argues officers left material facts relating to his
arrest out of the warrant. But Lewis waived these arguments by entering
his guilty plea. Ariz. R. Crim. P. 33.2(a)(1); see State v. Hamilton, 142 Ariz.
91, 94 (1984) (“It is well established that entry of a valid guilty plea[]
forecloses a defendant from raising nonjurisdictional defects.” (cleaned
up)); State v. Popejoy, 9 Ariz. App. 170, 172 (1969) (recognizing an arrest
warrant defect as a nonjurisdictional question).

¶14 Fourth, Lewis asserts the superior court erred because he is
entitled to relief because he was designated with an “improper party
status” before he entered his plea, and currently still holds the status. He
contends his designation as a gang member is incorrect and may have led
to his arrest in this case and affected his plea. But the plea did not require
Lewis to admit he was a gang member nor did the charges or sentences
refer to his alleged status as a gang member. Trial counsel also advised the

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STATE v. LEWIS
Decision of the Court

court during sentencing that Lewis was not a gang member. Lewis cannot
demonstrate a colorable claim because this “improper party status” did not
impact his plea. See State v. Runningeagle, 176 Ariz. 59, 63 (1993) (stating a
colorable claim is one where, if the allegations are true, might have changed
the outcome). Thus, the superior court did not abuse its discretion in
finding no cognizable claim for post-conviction relief.

CONCLUSION

¶15 For the foregoing reasons, we grant review but deny relief.
Lewis also filed his Notice of Application for Default while his Petition for
Review was pending before the Court. Because the Notice of Application
for Default advances the same requests as the Petition for Review, we deny
it.

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

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