                                                                FILED BY CLERK
                       IN THE COURT OF APPEALS
                           STATE OF ARIZONA                        JAN 27 2012
                             DIVISION TWO                           COURT OF APPEALS
                                                                      DIVISION TWO



THE STATE OF ARIZONA,                        )
                                             )
                             Respondent,     )      2 CA-CR 2011-0252-PR
                                             )      DEPARTMENT A
             v.                              )
                                             )      OPINION
DANIEL DIAZ,                                 )
                                             )
                               Petitioner.   )
                                             )


PETITION FOR REVIEW FROM THE SUPERIOR COURT OF COCHISE COUNTY

                             Cause No. CR200700013

                         Honorable Charles A. Irwin, Judge

                      REVIEW GRANTED; RELIEF DENIED


Paul J. Mattern                                                            Phoenix
                                                             Attorney for Petitioner


E C K E R S T R O M, Presiding Judge.
¶1            Petitioner Daniel Diaz seeks review of the trial court’s order dismissing his

post-conviction relief proceeding, initiated pursuant to Rule 32, Ariz. R. Crim. P. We

will not disturb a trial court’s ruling denying post-conviction relief absent a clear abuse of

discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Diaz

has not sustained his burden of establishing such abuse here.

¶2            Following a jury trial, Diaz was convicted of possession of a dangerous

drug for sale and sentenced to an aggravated term of twenty-five years’ imprisonment.

This court affirmed his conviction, but remanded the case for resentencing. State v. Diaz,

222 Ariz. 188, ¶ 1, 213 P.3d 337, 338 (App. 2009), vacated in part, 224 Ariz. 322, 230

P.3d 705 (2010). After accepting the state’s petition for review, our supreme court

vacated the portion of our decision addressing Diaz’s sentence and affirmed his sentence

as originally imposed. Diaz, 224 Ariz. 322, ¶ 18, 230 P.3d at 708.

¶3            On the same day he filed his notice of appeal, Diaz also filed his first notice

of post-conviction relief. The trial court stayed that proceeding until June 2010, after the

issuance of our supreme court’s mandate. Appointed counsel in that proceeding, Kelly

Smith, sought numerous extensions of Rule 32’s deadlines and, after granting several

extensions, the court ultimately dismissed the proceeding with prejudice. Diaz petitioned

this court for review, and we granted review, but denied relief. State v. Diaz, No. 2 CA-

CR 2010-0300-PR, ¶ 9 (memorandum decision filed Jan. 21, 2011).




                                              2
¶4            Diaz, represented by new court-appointed counsel, initiated another post-

conviction proceeding in February 2011.1 On May 25, 2011, Diaz’s new counsel, Paul

Mattern, filed a motion requesting an extension of time to file the petition for post-

conviction relief, citing serious family problems. The trial court granted the motion,

giving counsel until July 11 to file the petition. On July 25, counsel again filed a motion

to extend the time to file the petition, and the court granted the motion, allowing counsel

to file the petition by August 22 and stating, “No further extensions will be granted.” On

August 26, counsel filed a third motion to extend time for an additional seven days,

asking that the court set the due date for the petition for September 1. On September 8,

2011, the court denied the motion, noting in its ruling that no petition had yet been filed

and that approximately 200 days had passed since the filing of the notice. The court thus

found “no extraordinary circumstances beyond those which [had] served as the basis of

the first two extensions.”

¶5            On review, Mattern addresses only the trial court’s ruling denying attorney

Smith’s motion to extend time and discusses only Smith’s conduct. Because this court

has already denied relief on his claim related to Smith’s conduct, see Diaz, No. 2 CA-CR

2010-0300-PR, Diaz is not entitled to challenge it again. The issues relating to that

petition and attorney Smith’s requests for time extensions were finally adjudicated in the

previous Rule 32 proceeding, and they are precluded. See Ariz. R. Crim. P. 32.2(a)(2).



       1
         The trial court’s ruling states that Diaz’s “new counsel filed his second Notice of
Post-Conviction Relief” on February 14, 2011. That document, however, is not included
in the record before us.
                                             3
¶6            Mattern failed to present any argument as to why the trial court’s

September 2011 ruling denying his most recent motion to extend time and dismissing this

proceeding was an abuse of discretion. Any such argument is therefore waived. See

Ariz. R. Crim. P. 32.9(c)(1) (petition for review shall contain “the reasons why the

petition should be granted” and “specific references to the record”). Accordingly, we

must deny relief.

¶7            In so doing, we do not overlook the procedural injustice to Diaz. Through

no fault of his own, most of his conceivable challenges to his conviction and sentence

through post-conviction proceedings, under our Rules of Criminal Procedure, forever will

be precluded.2      See Ariz. R. Crim. P. 32.2(a)(3) (defendant precluded from post-


       2
        Although counsels’ failures have made it difficult to ascertain exactly what
claims Diaz would have presented had he been allowed to file a petition, a copy of the
petition for post-conviction relief Smith apparently attempted to file in Diaz’s first
Rule 32 proceeding is included in the appendix to the petition for review in this
proceeding. In that petition, Smith raised only one claim—that trial counsel had been
ineffective in failing to advise Diaz properly as to the possible penalty he faced if
convicted. Pursuant to State v. Donald, “a defendant may state a claim for post-
conviction relief on the basis that counsel’s ineffective assistance led the defendant to
make an uninformed decision to reject a plea bargain and proceed to trial.” 198 Ariz.
406, ¶ 14, 10 P.3d 1193, 1200 (App. 2000). In providing the advice necessary to allow a
defendant to make an informed decision, counsel should advise a defendant of the
consequences should he or she be convicted. See id. ¶¶ 14, 17-19.

        Here, the state offered Diaz a fifteen-year plea agreement during trial. It then
became clear that while Diaz’s counsel believed Diaz faced a maximum sentence of
fifteen years, the state believed he would face a longer sentence. The trial court declined
to take a position on the matter, but expressly advised Diaz: “[I]t’s the state’s position
that if convicted you would be facing a maximum sentence of 28 years. Your attorney
doesn’t agree with that . . . [and] is still of the opinion that . . . 15 years is the maximum
amount.” Diaz stated that he understood. Thus, although Diaz’s counsel advised him he
faced fifteen years’ imprisonment if convicted, Diaz was aware he could face as many as
twenty-eight years. Cf. id. ¶ 14 (defendant may state claim for relief when “counsel’s
                                              4
conviction relief based on any ground waived “in any previous collateral proceeding”);

Ariz. R. Crim. P. 32.2 cmt. (failure of counsel to raise claim in post-conviction

proceeding waives most claims of trial error regardless of whether claim knowingly,

voluntarily, and intelligently waived by defendant).

¶8            Although Rule 32.2(b) provides exceptions to the preclusion rule for certain

types of claims upon a meritorious showing as to why such claims were not raised in a

prior petition, those types of claims are very limited. See Ariz. R. Crim. P. 32.2(b)

(creating exception for claims specified in Rule 32.1(d) through (h); limited to claims

arising from newly discovered evidence, clear and convincing evidence of actual

innocence, significant change in law, or defendant being held in custody past completion

of sentence). There is no exception for claims of ineffective assistance of trial counsel—

the primary species of claim reserved for post-conviction proceedings and the specific

type of claim Diaz sought to raise in his first post-conviction proceeding. Thus, Diaz’s

procedural right to pursue relief in the post-conviction process has been impaired

substantially by the inability of two attorneys, neither of his choosing, to file even one

petition in a reasonably timely manner. There is no evidence in the record before us that

Diaz impeded either attorney in any respect or in any way was complicit with either

counsel’s tardiness in filing.




ineffective assistance led [him] to make an uninformed decision to reject a plea bargain”).
On the limited record before us, and given that this court agreed with defense counsel’s
position before being reversed by the supreme court, we are skeptical the trial court
would conclude trial counsel’s performance was deficient. But it is a claim Diaz should
have been entitled to present in post-conviction proceedings.
                                            5
¶9            We cannot fault the trial court for ultimately concluding, after granting

numerous continuances, that the respective attorneys had failed to describe sufficiently

“extraordinary” circumstances to compel further patience in awaiting the filing of Diaz’s

respective petitions. But our trial courts possess other potential methods of sanctioning

dilatory counsel which could have been employed here—including contempt of court

proceedings, replacing counsel with another attorney, and alerting the pertinent

authorities that counsel no longer should be appointed to such cases. See, e.g., A.R.S.

§ 12-864; Ariz. R. Crim. P. 33.1; cf. Ariz. R. Crim. P. 6.5(c) (“All criminal appointments

shall be made in a manner fair and equitable to the members of the bar, taking into

account the skill likely to be required in handling a particular case.”). In the future, we

would encourage courts to consider such alternatives before dismissing post-conviction

proceedings under the circumstances here and to avoid sanctions which punish only

litigants who have played no role whatsoever in the delays.

¶10           At this stage, Rule 32 provides no procedural avenue by which we may

restore to Diaz an opportunity to litigate the full range of post-conviction claims available

had his petition been timely filed. In Rule 32.1(f), our supreme court has anticipated and

addressed a cousin of the dilemma we face, therein restoring post-conviction rights to

those defendants who, through no fault of their own, have failed to file a timely notice of

post-conviction relief in an “of right” proceeding. Unfortunately, that rule makes no




                                             6
similar provision for defendants like Diaz who share no culpability in the untimely filing

of their first post-conviction petitions.3

¶11              For the foregoing reasons, although we grant review, we have no basis on

which to grant Diaz the opportunity to pursue his full post-conviction remedies and

thereby remedy the injustice here. “Rule 32 ‘is designed to accommodate the unusual

situation where justice ran its course and yet went awry.’” State v. Carriger, 143 Ariz.

142, 146, 692 P.2d 991, 995 (1984), quoting State v. McFord, 132 Ariz. 132, 133, 644

P.2d 286, 287 (App. 1982). This case presents such a situation, but unfortunately Rule 32

provides no means by which we may correct its course.

¶12              We have a duty, however, to refer the two attorneys who represented Diaz

in his two post-conviction proceedings to the State Bar of Arizona for potential

discipline. We also, by separate order, will set a hearing for counsel of record for Diaz to

show cause why he should not be held in contempt of this court for his apparent lack of

candor in failing to address his own untimely actions at the trial court level—the only

actions pertinent to the petition for review he filed on Diaz’s behalf. We also appoint

new counsel for Diaz to file any petition seeking the Arizona Supreme Court’s review of

this decision.




       3
         Because defendants are often provided court-appointed counsel upon the filing of
their first notice for post-conviction relief, the supreme court may have assumed in
promulgating the rule that presumptively competent counsel would reliably abide by the
rule’s time limits and the reasonable extensions granted by the trial court for filing the
petition, and any failure to file timely usually would arise from the conduct of the
defendants themselves.
                                             7
¶13       In sum, although we grant review of Diaz’s petition, we reluctantly deny

relief.

                                       /s/ Peter J. Eckerstrom
                                       PETER J. ECKERSTROM, Presiding Judge

CONCURRING:


/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge




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