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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    SHAWN WAYNE BURNS, Petitioner.

                         No. 1 CA-CR 15-0859 PRPC
                             FILED 6-22-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2014-112272-001
                   The Honorable David B. Gass, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Shawn Wayne Burns, Eloy
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the court, in
which Judge Patricia K. Norris and Judge Jennifer B. Campbell joined.
                             STATE v. BURNS
                            Decision of the Court

J O H N S E N, Judge:

¶1             Shawn Wayne Burns petitions for review of the summary
dismissal of his untimely notice of post-conviction relief filed pursuant to
Arizona Rule of Criminal Procedure ("Rule") 32.4. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2            Burns pled guilty to taking the identity of another with one
prior conviction. The superior court sentenced him as a repetitive offender
to an aggravated five-year prison term. More than ten months after his
sentencing, Burns filed a notice of post-conviction relief, indicating his
intent to raise claims of newly discovered material facts, failure to file
timely notice of post-conviction relief without fault on his part, actual
innocence and ineffective assistance of counsel. Explaining that the notice
was untimely under Rule 32.4(a), the superior court summarily dismissed
the proceeding, ruling that a claim of ineffective assistance of counsel
cannot be raised in an untimely post-conviction relief proceeding and that
Burns failed to support his remaining claims with specific facts or explain
why the claims could not have been raised in a timely Rule 32 proceeding.

¶3              On review, Burns argues the superior court erred in ruling
that he failed to support any non-precluded claims with specific facts and
by failing to apply the "Martinez exception" to permit review of his claims
on the merits. See Martinez v. Ryan, 566 U.S. 1 (2012). Under Rule 32.2(b),
when a defendant raises a claim for relief in an untimely post-conviction
relief proceeding, "the notice of post-conviction relief must set forth the
substance of the specific exception and the reasons for not raising the claim
. . . in a timely manner." The superior court did not abuse its discretion in
concluding that the notice did not provide meritorious reasons excusing the
failure to file a timely notice, nor did the notice provide meritorious reasons
substantiating the claims. The court correctly ruled that under Rule 32.2(b),
an untimely notice of post-conviction relief may not raise a claim of
ineffective assistance of counsel. As for claims not waived by untimeliness,
the court did not abuse its discretion in finding that Burns failed to supply
clear and convincing evidence that the facts would be sufficient to establish
that no reasonable fact-finder would have found him guilty, pursuant to
Rule 32.1(h), and Burns provided no argument to support any claim of
newly discovered evidence.

¶4            In summarily dismissing the notice, the superior court issued
a ruling that clearly identified, fully addressed and correctly resolved the
claims Burns sought to raise in his notice of post-conviction relief. Further,
the court did so in a thorough, well-reasoned manner that will allow any


                                      2
                             STATE v. BURNS
                            Decision of the Court

future court to understand the court's rulings. Under these circumstances,
"[n]o useful purpose would be served by this court rehashing the trial
court's correct ruling in a written decision." State v. Whipple, 177 Ariz. 272,
274 (App. 1993). We therefore adopt the superior court's ruling.

¶5            Burns has attached an affidavit to his petition for review in
support of his contention that his failure to file a timely notice of post-
conviction relief was without fault on his part, but this affidavit was never
submitted to the superior court. Accordingly, we do not consider it because
a petitioner may not supplement a petition for review with additional facts
or materials not first presented to the superior court. State v. Ramirez, 126
Ariz. 464, 468 (App. 1980); see also Ariz. R. Crim. P. 32.9(c)(1). The affidavit
he supplied to the superior court with his notice of post-conviction relief
contained no facts in support of his contention that his failure to file timely
was not his fault.

¶6            Finally, we reject the argument that Burns is entitled to relief
from the summary dismissal of his untimely Rule 32 proceeding pursuant
to Martinez, 566 U.S. at 16. As explained in State v. Escareno-Meraz, 232 Ariz.
586, 587, ¶¶ 4-6 (App. 2013), the holding in Martinez concerned federal
habeas procedure and established no new constitutional principle applying
to post-conviction proceedings under Arizona law. That case therefore
does not permit Burns to overcome a failure to comply with the time limits
of Rule 32.4(a). Likewise, Trevino v. Thaler, 133 S. Ct. 1911 (2013), is of no
assistance to Burns because it addresses federal habeas procedure, not
Arizona law.

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




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




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