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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 ROBERT EDWARD JOHNSON, Petitioner.

                         No. 1 CA-CR 14-0405 PRPC
                             FILED 6-9-2016


    Petition for Review from the Superior Court in Maricopa County
                        No. CR 2010-123101-001
                  The Honorable Connie Contes, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Robert Edward Johnson, Buckeye
Petitioner Pro Se



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Donn Kessler joined.
                            STATE v. JOHNSON
                            Decision of the Court

D O W N I E, Judge:

¶1            Robert E. Johnson seeks review of an order denying a petition
for post-conviction relief filed pursuant to Arizona Rule of Criminal
Procedure 32.1. Absent an abuse of discretion or error of law, we will not
disturb the superior court’s ruling on the petition. See State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012). Finding no such error, we grant review but deny
relief.

¶2             Johnson pled guilty to one count of Attempted Second Degree
Murder, a Class 2 Dangerous Felony, and one count of Attempted Aggravated
Assault, a Class 3 Felony and Dangerous Crime Against Children (Domestic
Violence Offense). The superior court sentenced Johnson to a 17.5-year term
of imprisonment on the first count and to lifetime probation on the second
count.

¶3             In 2011, Johnson filed his first notice of post-conviction relief.
His appointed counsel in that matter stated she could not find any basis for
relief. Johnson subsequently filed a pro-per petition for post-conviction relief
in September of 2012. The State opposed that petition, and the superior court
dismissed it in April 2013 in a detailed minute entry ruling.

¶4            In November 2013, Johnson filed an untimely and successive
petition for post-conviction relief which the superior court dismissed in
December of 2013. In April 2014, Johnson filed his final notice of post-
conviction relief which was dismissed and is now before this Court. In that
filing, Johnson sought relief because his counsel for the first petition was
reportedly ineffective. He claimed he was entitled to relief based on
Martinez v. Ryan, 132 S. Ct. 1309 (2012), which he asserted was a significant
change in the law. Specifically, Johnson argued that Martinez extended the
right to effective assistance of counsel to an initial post-conviction relief
proceeding.

¶5            The superior court concluded Martinez did not constitute a
significant change in the law and summarily dismissed the petition.1
Johnson timely petitioned this Court for review.

¶6           Ineffective assistance of prior post-conviction relief counsel is
generally not a valid, substantive claim under Rule 32, State v. Mata, 185

1       This Court has held that Martinez did not constitute a significant
change in state law entitling a petitioner to raise a claim of ineffective
assistance of post-conviction counsel. State v. Escareno-Meraz, 232 Ariz. 586,
587, ¶ 6 (App. 2013).


                                       2
                             STATE v. JOHNSON
                             Decision of the Court

Ariz. 319, 336–37 (1996); State v. Krum, 183 Ariz. 288, 291–92 (1995); State v.
Armstrong, 176 Ariz. 470, 474–75 (App. 1993). However, if — as here — the
initial post-conviction relief proceeding is an “of-right” proceeding,
ineffective assistance of counsel is a cognizable claim. State v. Pruett, 185
Ariz. 128, 130–31 (App. 1995). Martinez did not affect this right, and
Johnson could have raised the issue under existing case law -- Pruett. Thus,
whether Martinez constituted a significant change in the law is immaterial.
See Ariz. R. Crim. P. 32.4(a). State v. Lopez, 234 Ariz. 513, 515, ¶ 8 (App. 2014)
(post-conviction relief claim time-barred, regardless of degree of
constitutional magnitude, because it was not timely presented).

                                CONCLUSION

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




                                     :AA




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