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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     LAMONT HENNIX, JR., Petitioner.

                         No. 1 CA-CR 16-0387 PRPC
                              FILED 10-26-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-003538-001
                   The Honorable David B. Gass, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Lamont Hennix, Jr., Eloy
Petitioner



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.
                             STATE v. HENNIX
                            Decision of the Court

D O W N I E, Judge:

¶1           Lamont Hennix, Jr., petitions for review from the superior
court’s dismissal of his petition for post-conviction relief filed pursuant to
Arizona Rule of Criminal Procedure (“Rule”) 32. For the following reasons,
we grant review but deny relief.

¶2            Hennix pleaded guilty to promoting prison contraband, a
class 2 felony, and he admitted having one prior felony conviction. The
superior court imposed a stipulated term of 9.25 years’ imprisonment.
More than two years later, Hennix filed a notice of, and petition for, post-
conviction relief, raising claims of ineffective assistance of counsel and
actual innocence. The superior court summarily dismissed the Rule 32
proceeding, and this timely petition for review followed. We review the
superior court’s ruling for an abuse of discretion. State v. Gutierrez, 229 Ariz.
573, 577, ¶ 19 (2012).

¶3             Because this is Hennix’s “of-right” post-conviction relief
proceeding, he was required to file his Rule 32 notice within 90 days of
being sentenced. Ariz. R. Crim. P. 32.4(a). The time limits for filing a notice
and petition for post-conviction relief “are jurisdictional, and an untimely
filed notice or petition shall be dismissed with prejudice.” State v. Lopez,
234 Ariz. 513, 515, ¶ 8 (App. 2014); Ariz. Rev. Stat. (“A.R.S.”) § 13-4234(G).
A defendant who fails to timely file a notice of post-conviction relief has no
remedy unless he or she can demonstrate, pursuant to Rule 32.1(f), that the
“failure to file a notice of post-conviction relief of-right . . . within the
prescribed time was without fault on the defendant’s part.” Lopez, 234 Ariz.
at 515, ¶ 9.

¶4            Although Hennix asserts his untimely Rule 32 notice was
without fault on his part, and he claims his attorney failed to follow his
instruction to file a timely petition, Hennix has not explained why he
waited more than two years to file the notice. The absence of such an
explanation is particularly problematic because defense counsel was
allowed to withdraw from Hennix’s representation one week after
sentencing.

¶5           Hennix also asserts his petition should not have been
dismissed because he is actually innocent of the charge of promoting
contraband due to duress. He contends he possessed the contraband
because of duress, so Rule 32.1(h) provides grounds for his petition because
“no reasonable fact-finder would have found [him] guilty of the underlying
offense beyond a reasonable doubt.” We conclude otherwise.


                                       2
                             STATE v. HENNIX
                            Decision of the Court

¶6             A duress defense is available only if “a reasonable person
would believe that he was compelled to engage in the proscribed conduct
by the threat or use of immediate physical force against his person.” A.R.S.
§ 13-412(A). The duress “must be present, imminent and impending.” State v.
Kinslow, 165 Ariz. 503, 505 (1990) (no error in precluding duress defense
where evidence showed defendant who had escaped from prison faced no
imminent physical injury despite “shoot to kill” order). When a Rule 32
petition is untimely, Rule 32.2(b) preserves a claim of actual innocence if the
defendant alleges substantial claims, supported with specific facts, and
adequately explains why the claims are untimely. Hennix’s petition offers
no facts suggesting a specific imminent threat, relying instead on general
allegations of dangers posed by white supremacist prisoners to black
prisoners and threats by “strangers.”

¶7             Based on the record before it, the superior court did not abuse
its discretion in summarily dismissing the Rule 32 proceeding.

                               CONCLUSION

¶8            For the foregoing reasons, we grant review but deny relief.




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




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