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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              MICHAEL ANTHONY JEFFERSON, Petitioner.

                         No. 1 CA-CR 16-0067 PRPC
                              FILED 10-31-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2010-135286-001
                   The Honorable Daniel J. Kiley, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Michael Anthony Jefferson, Eloy
Petitioner
                           STATE v. JEFFERSON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma
joined.


D O W N I E, Judge:

¶1           Michael Anthony Jefferson petitions for review from the
dismissal of his petition for post-conviction relief. For the following
reasons, we grant review but deny relief.

¶2            On October 26, 2011, Jefferson was convicted, after a jury trial,
of illegal control of an enterprise, money laundering, three counts of
aggravated taking identity of another, fraudulent schemes and artifices,
and trafficking in the identity of another. The jury found multiple
aggravating factors. Jefferson was sentenced to a total of 31.5 years in
prison.

¶3            Jefferson was initially represented by counsel at trial. On the
third day of trial, though, he waived his right to counsel and chose to
represent himself. Appointed counsel remained in an advisory capacity.
On the ninth day of trial, Jefferson fled to Mexico, and the trial continued
in his absence. The court had previously warned Jefferson that this could
occur. Advisory counsel resumed representation of Jefferson through
closing arguments and the verdict. Upon his return from Mexico, Jefferson
was taken into custody. He elected to represent himself at sentencing.

¶4            During and after trial, Jefferson filed numerous motions for
mistrial, motions to vacate, and motions to compel discovery. He also filed
misconduct complaints against the trial judge and appointed appellate
counsel.1    Jefferson alleged, inter alia: illegal search and seizure;
prosecutorial misconduct and vindictiveness; illegal suppression of
exculpatory evidence; judicial misconduct; ineffective assistance of counsel;
and that he was assaulted while in custody. The trial judge recused herself
from the sentencing hearing.



1      Neither complaint resulted in action against the judge or counsel.



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                           STATE v. JEFFERSON
                           Decision of the Court

¶5              After sentencing, Jefferson’s appointed appellate counsel
filed a direct appeal, arguing: (1) the court should have sua sponte instructed
the jury it could not consider prior convictions as evidence of guilt;2 (2)
Jefferson was involuntarily absent from trial; (3) the trial court applied the
wrong standard in finding three historical prior felony convictions; and (4)
ineffective assistance of advisory counsel. This Court affirmed Jefferson’s
convictions and sentences. The Arizona Supreme Court denied review.

¶6            Jefferson’s first appointed post-conviction relief counsel, after
reviewing the record, found no meritorious claims. Jefferson filed a pro se
petition on May 6, 2016, alleging ineffective assistance of trial counsel and
direct appeal counsel. The State filed a response, and Jefferson filed a reply.
Due to a conflict of interest, new counsel was appointed to represent
Jefferson and to review the record. The second attorney also found no
viable issues. The superior court dismissed the petition for post-conviction
relief, concluding that Jefferson had simply recharacterized claims that
could have been raised on direct appeal as ineffective assistance of counsel
claims, and further, that the claims lacked merit, even if not precluded.

¶7            This Court will not reverse the superior court’s decision
absent an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441 (1986).
Generally, a trial court abuses its discretion if it commits an error of law in
reaching its decision or the record lacks substantial support for the court’s
decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004).

¶8             Jefferson identifies the following claims for review: (1)
whether the court erred in finding that the ineffective assistance claims
related to alleged constitutional violations and hearsay evidence were
precluded; (2) whether the court erred by not conducting an evidentiary
hearing on the claim that counsel was ineffective by failing to investigate
and move for dismissal due to “prejudicial pre-indictment delay;” (3)
whether counsel was ineffective by failing to seek dismissal on the basis of
prosecutorial vindictiveness; (4) counsel’s alleged failure to investigate,
conduct interviews, and file a motion to suppress; (5) counsel’s alleged
failure to investigate evidence of police brutality; (6) counsel’s failure to
suppress evidence or prevent the suppression of evidence; (7) counsel’s
failure to object to the court’s refusal to grant a continuance so he could hire
a private attorney; (8) counsel’s alleged tampering with a jury member on
the elevator during voir dire; (9) counsel’s failure to contact him when the
prosecutor filed a notice of change of judge; (10) counsel’s failure to request

2      As Jefferson was questioning a witness, he elicited evidence about
his probation status and prior conviction.


                                       3
                           STATE v. JEFFERSON
                           Decision of the Court

a new trial, mistrial, or dismissal after the trial judge recused herself before
sentencing; (11) counsel’s failure to object to inadmissible hearsay; (12)
counsel’s failure to object to allegedly false testimony; (13) counsel’s failure
to cross-examine the State’s witnesses, requiring Jefferson to represent
himself; (14) counsel’s failure to object when the judge and prosecutor
purportedly confiscated a jury list; (15) counsel’s failure to file a motion for
discovery regarding a detective’s record of misconduct; and (16) appellate
counsel’s failure to raise meritorious claims on appeal as directed by
Jefferson.

¶9              Jefferson couches each of his claims as an ineffective
assistance of counsel allegation. To the extent he is attempting to litigate
substantive legal issues that could or should have been raised on direct
appeal, the superior court correctly deemed those issues precluded. Ariz.
R. Crim. P. 32.2(a). And to the extent Jefferson is alleging deficient
performance by advisory counsel, that is not a cognizable claim. See State
v. Russell, 175 Ariz. 529, 531 (App. 1993).

¶10             To state a colorable claim of ineffective assistance of counsel,
a defendant must demonstrate that counsel’s performance fell below
objectively reasonable standards and that the deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Nash, 143 Ariz. 392, 397 (1985). To show prejudice, a defendant must
show that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. If a
defendant fails to make a sufficient showing on either prong of the
Strickland test, the trial court need not determine whether the defendant
satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).

¶11            Setting aside the fact that Jefferson chose to represent himself
for much of the trial and filed numerous pro se motions, he has provided no
factual basis to establish that counsel was ineffective. Ineffective assistance
of counsel “must be a demonstrable reality rather than a matter of
speculation.” State v. McDaniel, 136 Ariz. 188, 198 (1983). The superior
court examined each of Jefferson’s claims and found them to be without
merit. This court discerns no abuse of discretion.

¶12             Jefferson alleges his appellate counsel was ineffective by
failing to raise every issue he directed her to present. But a petitioner “must
offer evidence of a reasonable probability that but for counsel’s
unprofessional errors, the outcome of the appeal would have been


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                           STATE v. JEFFERSON
                           Decision of the Court

different.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Counsel is not
constitutionally required to raise every non-frivolous issue on appeal if she
determines “as a matter of professional judgment” not to present those
issues. Jones v. Barnes, 463 U.S. 745, 751 (1983). Jefferson has provided no
evidence that appellate counsel’s conduct fell below prevailing professional
norms.

¶13           The superior court did not err in concluding that Jefferson’s
claims were without merit and that he failed to make the showing required
by Strickland. We therefore grant review but deny relief.




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




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