                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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.

                 JUAN BENONCICO ESPINOZA, Petitioner.

                          No. 1 CA-CR 13-0024 PRPC
                                FILED 4-3-2014


    Petition for Review from the Superior Court in Maricopa County
                           No. CR1989-003435
                  The Honorable Jeanne M. Garcia, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

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

Juan Benoncico Espinoza, Florence
Petitioner Pro Per



                        MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court,
in which Judge John C. Gemmill and Judge Randall M. Howe joined.
                            STATE v. ESPINOZA
                            Decision of the Court

T H U M M A, Judge:

¶1            Petitioner Juan Benoncico Espinoza pled guilty to
kidnapping and sexual assault in 1989. The superior court sentenced him
to an aggregate term of twenty-one years’ imprisonment and this court
affirmed his convictions and sentences on direct appeal. State v. Espinoza, 1
CA-CR 89-1540 (Ariz. App. May 2, 1991). Espinoza now seeks review of
the summary dismissal of his fourth petition for post-conviction relief.
This court has jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

¶2             Espinoza argues his trial counsel was ineffective and the trial
court erred when they failed to adequately explain the sentencing
provisions of the plea agreement or the potential consequences of those
sentencing provisions. Espinoza contends his plea was not knowing,
intelligent and voluntary due to the inactions of his counsel and the court.
Espinoza further argues the court erred when it imposed sentences that
Espinoza believes were not in accordance with the plea agreement.
Finally, Espinoza contends his appellate counsel was ineffective by failing
to raise these issues on direct appeal. Espinoza also asserts the United
States Supreme Court decision in Martinez v. Ryan, __ U.S. __, 132 S.Ct.
1309 (2012), constitutes a significant change in the law that allows him to
raise these claims in an untimely fashion.

¶3             Although granting review, addressing the relief requested,
Espinoza raised and/or could have raised these issues in his prior
petitions for post-conviction relief. 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.
Moreover, Martinez 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
Espinoza may be able to seek habeas corpus relief in federal court based
on ineffective assistance of counsel, not that his claims in this state court
proceeding properly may be raised in an untimely fashion.




                                       2
                  STATE v. ESPINOZA
                  Decision of the Court

¶4   This court grants review and denies relief.




                         :MJT




                            3
