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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 GABRIEL ALDEN FIGUEROA, Petitioner.

                         No. 1 CA-CR 15-0378 PRPC
                              FILED 5-9-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-170921-002
                 The Honorable Lisa Daniel Flores, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Gabriel Alden Figueroa, Florence
Petitioner
                           STATE v. FIGUEROA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            Gabriel Figueroa petitions this Court for review of the trial
court’s 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             The State charged Figueroa with one count each of possession
of marijuana for sale, possession of drug paraphernalia, possession or use
of narcotic drugs, and threatening or intimidating. Figueroa pled guilty to
an amended charge of possession of marijuana for sale with one prior
felony conviction in return for the dismissal of all other charges and the
State’s agreement not to charge Figueroa with a sexual conduct with a
minor offense in another criminal matter. Within the plea agreement,
Figueroa agreed he would be sentenced to a prison term between ten and
twenty-three years. The trial court subsequently sentenced Figueroa to
fifteen years’ imprisonment.

¶3             Figueroa filed an “of-right” notice for post-conviction relief
and appointed counsel informed the trial court that, after reviewing the
record and discussing matters with Figueroa, he was unable to discern any
colorable claim for post-conviction relief. See Ariz. R. Crim. P. 32.4(c)(2).
Figueroa proceeded in propria persona and filed a Rule 32 petition, arguing,
among other things, that he received ineffective assistance of trial counsel
(IAC) based on counsel’s failure to seek suppression of certain evidence.
The trial court determined Figueroa failed to state any colorable claims and
summarily dismissed the petition. See Ariz. R. Crim. P. 32.6(c). Figueroa
did not seek review, but instead, filed a second petition for post-conviction
relief, again raising specific claims of IAC. The court summarily dismissed
the second petition, and this timely petition for review followed.

¶4            “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4 (App. 2007). No abuse of discretion occurred.
Pursuant to Rule 32.2(a), Figueroa was precluded from relief because the


                                     2
                            STATE v. FIGUEROA
                            Decision of the Court

claims raised in his successive petition for post-conviction relief either were,
or should have been, raised in his first Rule 32 proceeding. None of the
exceptions in Rule 32.2(b) apply. See State v. Petty, 225 Ariz. 369, 373, ¶ 11
(App. 2010) (holding that a claim for ineffectiveness of counsel implicates
the Sixth Amendment and is therefore encompassed within Rule 32.1(a)).

¶5            Accordingly, we grant review and deny relief.




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




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