                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                    OMAR LATEEF THOMAS, Petitioner.

                         No. 1 CA-CR 13-0234 PRPC
                              FILED 09-18-2014


    Petition for Review from the Superior Court in Maricopa County
                           No. CR1989-009859
                  The Honorable Bruce R. Cohen, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Omar Lateef Thomas, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Margaret H. Downie, Judge Andrew W. Gould and Judge
Samuel A. Thumma delivered the following decision:
                             STATE v. THOMAS
                             Decision of the Court

PER CURIAM:

¶1            Omar Lateef Thomas petitions for review from the superior
court’s dismissal of his petition for post-conviction relief. For the following
reasons, we grant review and deny relief.

¶2           A jury convicted Thomas in 1990 of four counts of aggravated
assault. The superior court sentenced him to four concurrent terms of life
imprisonment without a possibility of parole for twenty-five years. We
affirmed Thomas’s convictions and sentences on direct appeal. State v.
Thomas, 1 CA-CR 90-382 (Ariz. App. Apr. 14, 1992). Thomas now seeks
review of the summary dismissal of his latest successive petition for post-
conviction relief. We have jurisdiction pursuant to Arizona Rule of
Criminal Procedure 32.9(c).

¶3            Thomas argues his trial counsel was ineffective by failing to
inform him of a plea offer and contends his first post-conviction relief
counsel was ineffective by failing to discover and raise this issue in the first
post-conviction relief proceeding filed in 1995.1 Thomas contends the
decisions in Martinez v. Ryan, 132 S.Ct. 1309 (2012), Missouri v. Frye, 132 S.Ct.
1399 (2012), and Ladler v. Cooper, 132 S.Ct. 1376 (2012), constitute significant
changes in the law that permit him to now assert these untimely claims. We
disagree.

¶4             Thomas’s claims are precluded because he raised and/or
could have raised these issues in prior post-conviction relief proceedings.
In his earlier post-conviction relief proceeding, Thomas argued Martinez,
Frye, and Ladler constituted significant changes in the law that permitted
him to raise claims of ineffective assistance of his first post-conviction relief
counsel. Thomas also addressed the State’s plea offer. Thomas offers no
explanation for his failure to raise his new claims of ineffective assistance
of trial and post-conviction relief counsel in the prior proceeding. Any
claim a defendant raised or could have raised in an earlier post-conviction
relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). None of the
exceptions under Rule 32.2(b) apply here.

¶5            Moreover, Martinez, Frye, and Ladler are not significant
changes in the law that permit Thomas to assert untimely claims of
ineffective assistance. In Frye and Ladler, the Court held that a defendant
has a right to the effective assistance of counsel during the plea bargain
process. Frye, 132 S.Ct. at 1407-08; Ladler, 132 S.Ct. at 1384. In Frye, the court


1      Counsel found no colorable claims for relief.


                                        2
                            STATE v. THOMAS
                            Decision of the Court

held that the right to effective assistance includes the right to have counsel
communicate all formal, favorable plea offers to the defendant. Frye, 132
S.Ct. at 1408. Frye and Ladler are not significant changes in the law as
applied in Arizona because Arizona has long recognized that the right to
effective assistance of counsel extends to the plea bargain process and that
counsel must adequately communicate all plea offers to the defendant.
State v. Donald, 198 Ariz. 406, 413, ¶¶ 14-17, 10 P.3d 1193, 1200 (App. 2000).
Thomas’s reliance on Martinez is also unavailing. In Martinez, the Court
held:

        Where, 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.

Martinez, 132 S.Ct. at 1320. The holding in Martinez simply means that a
defendant can seek habeas corpus relief in federal court based on ineffective
assistance of trial counsel if he or she can first show either that the defendant
had no counsel in the first post-conviction relief proceeding or that counsel
in the first post-conviction relief proceeding was ineffective.

                               CONCLUSION

¶6            For the reasons stated, we grant review and deny relief.




                                   :gsh




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