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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              GERARDO DELACRUZ NAVEJAS, Petitioner.

                         No. 1 CA-CR 13-0698 PRPC
                              FILED 5-28-2015


    Petition for Review from the Superior Court in Maricopa County
                           No. CR 2002-002789
                The Honorable Warren J. Granville, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL


Gerardo Delacruz Navejas, Kingman
Petitioner



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.
                              STATE v. NAVEJAS
                              Decision of the Court



B R O W N, Judge:

¶1            Gerardo Delacruz Navejas petitions for review of the trial
court’s summary dismissal of his fifth post-conviction relief proceeding
commenced pursuant to Arizona Rules of Criminal Procedure (“Rule”) 32.
We have considered his petition and, for the reasons stated, grant review
but deny relief.

¶2             Following a jury trial in 2002, Navejas was convicted of armed
robbery, first degree burglary, two counts of aggravated assault, and theft
of means of transportation. The trial court imposed consecutive and
concurrent terms of imprisonment totaling twenty-nine years. This court
affirmed the convictions and sentences on direct appeal. State v. Navejas, 1
CA-CR 02-0838 (App. Jun. 5, 2003) (mem. decision).

¶3            Four prior post-conviction relief proceedings commenced by
Navejas were dismissed by the trial court in September 2005, January 2013,
March 2013, and April 2013. On August 16, 2013, Navejas commenced a
fifth post-conviction relief proceeding by filing a pro se petition in which he
alleged claims of ineffective assistance of counsel, significant change in the
law, and actual innocence. In summarily dismissing this petition, the trial
court noted that the petition was both successive and untimely and ruled
that Navejas failed to establish a claim of significant change in the law
applicable to him pursuant to Rule 32.1(g) or a claim of actual innocence
pursuant to Rule 32.1(h).

¶4               On review, Navejas argues the trial court erred in summarily
dismissing his petition because Martinez v. Ryan, 132 S. Ct. 1309 (2012),
constitutes a significant change in the law that allows him to raise a claim
of ineffective assistance of counsel, notwithstanding that his petition is both
successive and untimely. See Ariz. R. Crim. P. 32.4(a) (“Any notice [of post-
conviction relief] not timely filed may only raise claims pursuant to Rule
32.1(d), (e), (f), (g) or (h).”); Ariz. R. Crim. P. 32.2(b) (requiring trial court to
dismiss successive notice of post-conviction relief if it fails to “set forth the
substance of the specific exception and the reasons for not raising the claim
in the previous petition or in a timely manner”). We review the summary
dismissal of a petition for post-conviction relief for abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006).

¶5           The trial court did not abuse its discretion in ruling that
Navejas failed to establish a claim of significant change in the law that


                                         2
                             STATE v. NAVEJAS
                             Decision of the Court

would entitle him to relief. In Martinez, the Supreme Court held that
“[w]here, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.” 132 S.
Ct. at 1320. This simply means Navejas can seek habeas corpus relief in
federal court based on ineffective assistance of trial counsel if he can first
show either he had no counsel in his first post-conviction relief proceeding
or counsel in his first post-conviction relief proceeding was ineffective.
Martinez does not require a state court to consider all untimely claims of
ineffective assistance of counsel raised in post-conviction proceedings.
State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 5-6, 307 P.3d 1013, 1014 (App.
2013).

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




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