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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      DANIEL WELDON HACKMAN,
                              Petitioner.

                         No. 1 CA-CR 14-0460 PRPC
                               FILED 7-21-2016


     Petition for Review from the Superior Court in Navajo County
                           No. CR 97-000531
                 The Honorable Robert J. Higgins, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Galen Wilkes
Counsel for Respondent

Daniel Weldon Hackman, Florence
Petitioner Pro Se
                           STATE v. HACKMAN
                            Decision of the Court



                      MEMORANDUM DECISION


Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Peter B. Swann joined.



O R O Z C O, Judge:

¶1            Petitioner Daniel Weldon Hackman petitions this court for
review from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, Arizona Revised Statute (A.R.S.) section 13-4239.C
(West 2016)1 and Arizona Rule of Criminal Procedure 32.9.c.

¶2            In 1998, a jury convicted Hackman of burglary, kidnapping,
aggravated assault and five counts of sexual assault. The trial court
sentenced Hackman to an aggregate term of eighty years and this court
affirmed his convictions and sentences on direct appeal. Hackman now
seeks review of the summary dismissal of his fourth successive post-
conviction relief proceeding.

¶3             Hackman argues he is innocent. He argues his innocence is
evident from the victim’s lack of credibility as shown by the contradictions
and discrepancies between her statements to investigators and her trial
testimony, and the physical impossibility of the victim’s version of events
based on Hackman’s own interpretation of the evidence. Hackman also
argues his trial counsel was ineffective and the State used perjury and other
false or manufactured evidence to obtain Hackman’s convictions. Finally,
Hackman argues the State should test a video of an interview between
Hackman and a detective to “clear up” parts that are inaudible.2



1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.

2      Hackman’s petition for review is not a model of clarity or
consistency. Much of the petition for review consists of explanations for



                                      2
                           STATE v. HACKMAN
                            Decision of the Court

¶4             Regarding innocence, Hackman could have raised this claim
in a prior petition for post-conviction relief. In fact, most, if not all, of
Hackman’s arguments in support of this claim are the same arguments he
presented in support of different theories of relief raised in his first post-
conviction relief proceeding in 2000. Hackman does not argue the evidence
he offers in support of this latest successive petition is newly discovered,
and he offers no explanation for why he did not raise a claim of innocence
in his prior post-conviction relief proceedings. While the rule of preclusion
does not apply to claims of innocence raised pursuant to Rule 32.1.h, a
petitioner who raises a claim of innocence in a successive post-conviction
relief proceeding must present a meritorious, substantiated claim and
indicate why the petitioner failed to raise the claim in a previous post-
conviction relief proceeding or in an otherwise timely manner. State v.
Jensen, 193 Ariz. 105, 106-07, ¶ 11 (App. 1998). If the petitioner fails to do
so, the post-conviction relief proceedings “shall be summarily dismissed.”
Ariz. R. Crim. P. 32.2.b (emphasis added).

¶5             Regarding the claims of ineffective assistance of counsel, the
State’s alleged use of perjury and/or false evidence and the need to test the
video, Hackman could have raised these issues in a prior post-conviction
relief proceeding. Because the claims could have been raised in an earlier
post-conviction relief proceeding, they are now precluded from review.
Ariz. R. Crim. P. 32.2.a; 32.2.b.




why arguments the trial court justifiably treated as independent claims for
post-conviction relief were not actual claims for relief, but were merely
arguments that supported Hackman’s claim of innocence. Hackman’s
reply brief is similar, arguing that while he means to present only a claim
of innocence, he has included “all the other auxillary [sic] claims that are
part and parcel of fundamental miscarriage of justice claims[.]” We have
erred on the side of over inclusiveness in our identification of the issues
Hackman presents for review.


                                      3
                 STATE v. HACKMAN
                  Decision of the Court

                    CONCLUSION

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




                        :AA




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