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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ARNULFO ROSAS HERNANDEZ, Petitioner.

                         No. 1 CA-CR 14-0754 PRPC
                              FILED 9-26-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 1999-011560
           The Honorable Robert L. Gottsfield, Judge (Retired)

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Arnulfo Rosas Hernandez, San Luis
Petitioner



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Chief Judge Samuel A. Thumma and Judge Jennifer B. Campbell joined.
                          STATE v. HERNANDEZ
                           Decision of the Court

D O W N I E, Judge:

¶1            Arnulfo Rosas Hernandez petitions for review of the superior
court’s summary dismissal of his fifth post-conviction relief proceeding.
For the following reasons, we grant review but deny relief.

¶2            A jury convicted Hernandez of first degree murder, burglary
in the first degree, attempted armed robbery, and seven counts each of
kidnapping and aggravated assault.          He was sentenced to life
imprisonment, together with concurrent and consecutive prison terms
totaling an additional 100 years. This Court affirmed the convictions and
sentences on appeal. State v. Rosas-Hernandez, 202 Ariz. 212 (App. 2002).

¶3            Hernandez has commenced four prior proceedings for post-
conviction relief, all of which have been unsuccessful. In 2014, he filed an
untimely and successive fifth notice and petition for post-conviction relief,
raising various claims, including ineffective assistance of trial and post-
conviction relief counsel. Ruling that Hernandez failed to state a claim for
which relief could be granted in an untimely, successive post-conviction
relief proceeding, the superior court summarily dismissed the proceeding
and denied Hernandez’s motion for rehearing.

¶4            On review, Hernandez relies on Stewart v. Smith, 202 Ariz. 446
(2002), arguing he is entitled to raise his ineffective assistance of counsel
claims because he did not knowingly, voluntarily, and intelligently waive
them. Pursuant to Stewart, certain claims may be raised in a successive post-
conviction proceeding without being precluded on waiver grounds under
Rule 32.2(a)(3). 202 Ariz. at 450, ¶ 12. But Stewart does not apply to claims
raised in an untimely proceeding such as this one, and Hernandez’s
ineffective assistance of counsel claims made pursuant to Rule 32.1(a) are
barred irrespective of waiver. See State v. Lopez, 234 Ariz. 513, 515, ¶¶ 6–8
(App. 2014); see also Ariz. R. Crim. P. 32.4(a) (only claims under Rule 32.1(d)
through (h) can be raised in an untimely proceeding).

¶5             Hernandez’s reliance on Martinez v. Ryan, 566 U.S. 1 (2012), is
similarly misplaced. In Martinez, the Supreme Court held that a defendant
who did not plead guilty may be able to obtain federal habeas review of a
claim that is procedurally barred if he can show ineffective assistance as to
his first post-conviction counsel. 566 U.S. at 16. As explained in State v.
Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 4–6 (App. 2013), the Martinez holding
does not affect Arizona state court post-conviction proceedings and does
not permit Hernandez to overcome the time limits of Rule 32.4(a).




                                      2
               STATE v. HERNANDEZ
                Decision of the Court

                    CONCLUSION

¶6   Accordingly, although we grant review, we deny relief




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




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