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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   ALGENE ROYCE GOULD, Petitioner.

                         No. 1 CA-CR 16-0015 PRPC
                              FILED 8-8-2017


     Petition for Review from the Superior Court in Yavapai County
                         No. V1300CR201080106
                  The Honorable Michael R. Bluff, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Yavapai County Attorney’s Office, Prescott
By Steve A. Young
Counsel for Respondent

Algene Royce Gould, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Peter B. Swann joined.
                             STATE v. GOULD
                            Decision of the Court

C R U Z, Judge:

¶1            Algene Royce Gould petitions this court for review from the
dismissal of his petition for post-conviction relief, filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2            A jury found Gould guilty of child molestation and
kidnapping, both Class 2 felonies and dangerous crimes against children.
The trial court imposed consecutive flat-time 20-year prison terms. On
direct appeal, this court affirmed Gould’s convictions and sentences.

¶3            Gould timely sought post-conviction relief. He challenged his
sentences as being improperly aggravated, and he summarily asserted that
his counsel provided ineffective assistance at sentencing. The trial court
found Gould’s sentencing challenge was precluded and denied Gould’s
petition.1 Gould petitioned for review, and this court denied relief.
Thereafter, Gould filed a “Petition for Writ of Habeas Corpus (Evidentiary
Hearing Requested),” arguing he was wrongfully convicted. Pursuant to
Rule 32.3, and construing the petition as one requesting Rule 32 relief, the
court summarily dismissed the petition because Gould did not first file a
notice of post-conviction relief. Gould “appealed.”2

¶4            The parties agree that Gould raised the following claims in his
petition for post-conviction relief:

       1.    The Indictment was invalid due to the use of perjured
       testimony;

       2.    Petitioner’s conviction was obtained through perjured
       testimony;

       3.    The State had insufficient evidence and no proof
       beyond a reasonable doubt that petitioner committed
       molestation of a child and kidnapping;



1     The court did not mention any claim of ineffective assistance of
counsel Gould may have argued in his petition.

2      Defendant first filed an “Opening Brief” in this court in 1 CA-HC 15-
0001, a habeas proceeding. That “appeal” was dismissed and the court
transferred the opening brief to this PCR proceeding.


                                      2
                              STATE v. GOULD
                             Decision of the Court

       4.      Petitioner was denied effective assistance of counsel by
       his attorney;

       5.     Prosecution withheld evidence favorable to petitioner;
       and,

       6.     Petitioner is actually innocent of all charges.

¶5           Gould argues the superior court erred in determining the
claims raised were not appropriate for habeas relief. Gould is incorrect.
Rule 32.3 provides:

       If a defendant applies for a writ of habeas corpus in a trial
       court having jurisdiction of his or her person raising any claim
       attacking the validity of his or her conviction or sentence, that
       court shall under this rule transfer the cause to the court
       where the defendant was convicted or sentenced and the
       latter court shall treat it as a petition for relief under this rule
       and the procedures of this rule shall govern.

Ariz. R. Crim. P. 32.3.

¶6            Gould’s claims attack the validity of his convictions.
Therefore, Rule 32.3 required the superior court to construe Gould’s request
for habeas relief to be a petition for post-conviction relief. Habeas corpus is
not a substitute for an appeal, and “may not be used to collaterally attack a
judgment of conviction where the claimed errors do not involve a loss of
jurisdiction by a court because of a denial of constitutional rights under
either the federal or state constitutions.” State v. Montez, 102 Ariz. 444, 447,
432 P.2d 456, 459 (1967).

¶7              “[C]ompliance with Rule 32 is not a mere formality.” Canion
v. Cole, 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005). A petitioner must
“strictly comply” with Rule 32 to be entitled to relief. Id. Rule 32.4(a)
provides: “A proceeding is commenced by timely filing a notice of post-
conviction relief with the court in which the conviction occurred.” Ariz. R.
Crim. P. 32.4(a). The time limits for filing a notice and petition for post-
conviction relief “are jurisdictional, and an untimely filed notice or petition
shall be dismissed with prejudice.” Ariz. Rev. Stat. § 13–4234(G) (2010);
State v. Lopez, 234 Ariz. 513, 515, ¶ 8, 323 P.3d 1164, 1166 (App. 2014). Gould
failed to file a timely notice as required, therefore no error occurred in
dismissing the successive post-conviction proceeding.




                                        3
                             STATE v. GOULD
                            Decision of the Court

¶8             The claims Gould raised were also precluded. Gould’s first
five claims either were, or could have been, raised in his direct appeal or his
first post-conviction petition. Regarding his claim of actual innocence,
Gould does not explain why it was not raised in the first Rule 32
proceeding. If a defendant who seeks post-conviction relief does not state
meritorious reasons regarding why a claim was not raised in a timely
manner, the PCR proceedings “shall” be dismissed. Ariz. R. Crim. P.
32.2(b). Therefore, Gould waived these issues and was precluded from
asserting them under Rule 32.2(a).

¶9              Gould fails to establish the superior court abused its
discretion or legally erred in denying Gould post-conviction relief. See State
v. Roseberry, 237 Ariz. 507, 508, ¶ 7, 353 P.3d 847, 848 (2015) (noting that,
absent an abuse of discretion or error of law, this court will not disturb the
trial court’s ruling on a petition for post-conviction relief). Accordingly, we
grant review and deny relief.




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




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