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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JEFFREY ALLEN WIGGS, Petitioner.

                         No. 1 CA-CR 16-0579 PRPC
                             FILED 7-27-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2013-002728-001
            The Honorable Jerry Bernstein, Judge Pro Tempore

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By David R. Cole
Counsel for Respondent

Jeffrey Allen Wiggs, Buckeye
Petitioner
                             STATE v. WIGGS
                            Decision of the Court



                       MEMORANDUM DECISION

Chief Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge James P. Beene joined.


T H U M M A, Chief Judge:

¶1             Petitioner Jeffrey Allen Wiggs seeks review of the superior
court’s order denying his petition for post-conviction relief, filed pursuant
to Arizona Rule of Criminal Procedure 32.1 (2017).1 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. State v. Gutierrez, 229 Ariz. 573, 577
¶ 19 (2012). Because Wiggs has shown no such error, this court grants
review but denies relief.

¶2            A jury convicted Wiggs of two counts of aggravated driving
or actual physical control while under the influence. Wiggs admitted he had
two prior historical felonies and the court sentenced him to concurrent
terms of 10 years in prison. This court affirmed the convictions and
sentences on direct appeal. State v. Wiggs, 1 CA-CR 14-0294, 2015 WL
1455201 (Ariz. App. Mar. 31, 2015) (mem. dec.).

¶3             Wiggs timely filed a notice of post-conviction relief. After
appointed counsel filed a notice that he had found no claims, Wiggs filed a
pro se petition. Wiggs reasserted claims that had been raised on direct
appeal and rejected on the merits, but presented them in the context of
ineffective assistance of counsel. He claimed that trial counsel was
ineffective for failing to: (1) challenge or expose perjured testimony; (2)
move to suppress pretrial and trial identifications; (3) challenge the State’s
suppression of evidence; (4) more effectively cross examine witnesses; and
(5) present trial evidence favorable to Wiggs.

¶4             The State responded that although the claims were presented
as ineffective assistance claims, some were actually argued as “stand alone”
claims and thus were precluded. The State also argued that Wiggs had not
set forth any colorable claim. Finding no colorable claim, the superior court



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       2
                            STATE v. WIGGS
                           Decision of the Court

summarily dismissed. Wiggs filed a motion for rehearing that was denied
the day after he filed his petition for review with this court.

¶5             Wiggs’ petition for review is deficient. Wiggs has improperly
incorporated by reference superior court filings, which is insufficient to
press an argument. State v. Bortz, 169 Ariz. 575, 578 (App. 1991). The only
issue properly presented is his claim that trial counsel failed to adequately
challenge a witness who had identified Wiggs as the driver of the vehicle
before the collision. He claims counsel should have moved to suppress the
pretrial identification, more “aggressively cross examine[d]” the witness at
trial and impeached the witness with a transcript of a 9-1-1 call.

¶6            To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668 (1984); State v. Nash, 143
Ariz. 392 (1985). If a defendant fails to make a sufficient showing on either
prong of the Strickland test, the court need not determine whether the other
prong was satisfied. State v. Salazar, 146 Ariz. 540 (1985).

¶7             To succeed on this claim, Wiggs must show that there is a
“reasonable probability,” that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. Strickland, 466 U.S. at
694. Wiggs has not met this burden. Although he asserts that the witness’s
identification was unreliable, he has not shown that, but for counsel’s
failure to more fully discredit the identification, the result of his trial
probably would have been different. As reflected by the record and the facts
set forth in this court’s memorandum decision on direct appeal, ample
circumstantial evidence was presented to the jury that Wiggs was driving
the vehicle at the time of the collision.

¶8            For these reasons, this court grants review but denies relief.




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




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