                          NOTICE: NOT FOR PUBLICATION.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.

                     ROBERT P. GUEVARA, Petitioner.

                         No. 1 CA-CR 13-0018 PRPC
                           FILED 4-17-2014


     Petition for Review from the Superior Court in Maricopa County
                            No. CR2001-004376
                   The Honorable Robert E. Miles, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By E. Catherine Leisch

Counsel for Respondent

Robert P. Guevara, Buckeye

Petitioner
                           STATE v. GUEVARA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Donn Kessler and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1           Petitioner Robert P. Guevara 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 but deny relief.

¶2           Guevara pleaded no contest to second degree murder, and
the superior court sentenced him to an aggravated term of 20 years
imprisonment in 2004. Guevara now seeks review of the dismissal of his
third post-conviction relief proceeding. We have jurisdiction pursuant to
Arizona Rule of Criminal Procedure 32.9(c).

¶3            Guevara argues he should be resentenced pursuant to
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004), because the superior court, rather than a jury, determined
the existence of aggravating factors for sentencing purposes. He also
argues his trial counsel and first post-conviction relief counsel were
ineffective for failing to raise the Apprendi and Blakely issues in a timely
fashion or otherwise explain his rights under those cases.

¶4            We deny relief. Guevara raised these same claims regarding
Apprendi, Blakely, and the alleged ineffective assistance of his trial counsel
in a 2010 writ of coram nobis, which the superior court treated as Guevara’s
second post-conviction relief proceeding. He could have also raised the
claims regarding his first post-conviction relief counsel at that time. As a
general rule, any claim a defendant raised or could have raised in a prior
post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a).
Further, none of the exceptions under Arizona Rule of Criminal Procedure
32.2(b) apply here.

¶5           Guevara argues Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309,
182 L. Ed. 2d 272 (2012), constitutes a significant change in the law that
allows him to raise his untimely claim of ineffective assistance of counsel.


                                      2
                          STATE v. GUEVARA
                          Decision of the Court

That case, however, is inapplicable in state post-conviction proceedings.
Martinez 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.

Id. at 1320. Accordingly, while Guevara may not raise an untimely
ineffective assistance of counsel claim in state court post-conviction
proceedings, he may seek habeas corpus relief in federal court based on
such a claim if he can first show his post-conviction counsel was
ineffective.

¶6           For the above reasons, we deny relief.




                              :MJT




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