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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JOHNNY E. PERALTA, Petitioner.

                          No. 1 CA-CR 14-0583 PRPC
                                 FILED 8-9-2016


     Petition for Review from the Superior Court in Maricopa County
                            No. CR 1994-003084
                    The Honorable Dean M. Fink, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Johnny E. Peralta, San Luis
Petitioner



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.
                            STATE v. PERALTA
                            Decision of the Court

K E S S L E R, Judge:

¶1           Johnny E. Peralta petitions this court for review of the
summary dismissal of his petition for writ of habeas corpus, which the
superior court treated as a petition for post-conviction relief pursuant to
Arizona Rule of Criminal Procedure 32.3. We have considered the petition
for review and, for the reasons stated, grant review but deny relief.

¶2             A jury convicted Peralta of two counts of first-degree murder
and two counts of kidnapping. The superior court sentenced him to two
natural life sentences on the murder convictions and two twenty-one-year
prison terms on the kidnapping convictions, with all sentences to be served
consecutively. Peralta’s convictions and sentences were affirmed on
appeal. State v. Peralta, 1 CA-CR 00-0496 (Ariz. App. Sep. 4, 2001) (mem.
decision).

¶3            Between 2001 and 2011, Peralta filed four post-conviction
relief proceedings, all of which were unsuccessful.

¶4             In July 2014, Peralta filed a petition for writ of habeas corpus,
which the superior court treated as a petition for post-conviction relief. In
his petition, Peralta raised claims of denial of due process, lack of probable
cause, denial of counsel, multiplicitous and duplicitous indictment,
violation of double jeopardy, ineffective assistance of counsel, and
miscarriage of justice. Finding the petition to be both untimely and
successive, the superior court summarily dismissed it, ruling that all the
claims raised were precluded. This petition for review followed.

¶5            On review, Peralta argues the superior court erred by treating
his petition for writ of habeas corpus as a notice of post-conviction relief
under Rule 32 and summarily dismissing it based on preclusion. We review
the summary dismissal of a post-conviction relief proceeding for abuse of
discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).

¶6            There was no error by the superior court in treating the
petition for writ of habeas corpus as a petition for post-conviction relief
under Arizona Rule of Criminal Procedure 32. This rule directs that when
a defendant “applies for a writ of habeas corpus . . . raising any claim
attacking the validity of his or her conviction or sentence, th[e] court shall
under this rule . . . treat [the action] as a petition for relief under this rule
and the procedures of this rule shall govern.” Ariz. R. Crim. P. 32.3. Thus,
the superior court properly treated Peralta’s petition as a petition for post-
conviction relief under Rule 32. See Floyd v. Superior Court, 134 Ariz. 472,



                                       2
                           STATE v. PERALTA
                           Decision of the Court

473 (App. 1982); see also Rule 32.3 cmt. (“Rule 32 is intended to provide a
standard procedure for accomplishing the objectives of all constitutional,
statutory, or common law post-trial writs and remedies except those
specified in this section.”).

¶7           Having properly treated the motion as a petition for post-
conviction relief, the trial court correctly found the petition to be both
untimely and successive pursuant to Rule 32.4(a), and the claims raised to
be precluded pursuant to Rule 32.2(a)(2).

¶8            Peralta’s specific challenge to summary dismissal of his claim
of “legal innocence” based on a finding of preclusion is without merit. The
claim of fundamental miscarriage of justice that encompasses the claim of
“legal innocence” was previously raised by Peralta in his petition for post-
conviction relief dismissed in 2011. A defendant is precluded from
obtaining relief under Rule 32 on any ground that has been raised or could
have been raised in any previous post-conviction proceeding. See Ariz. R.
Crim. P. 32.2(a). Thus, there was no abuse of discretion by the superior
court in dismissing this claim raised by Peralta in his fifth post-conviction
relief proceeding on grounds of preclusion.

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




                                  :AA




                                        3
