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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JUAN ESPINO-TORRES, Petitioner.

                         No. 1 CA-CR 16-0309 PRPC
                             FILED 7-6-2017


    Petition for Review from the Superior Court in Maricopa County
                       No. CR2008-007464-001 DT
              The Honorable Sally Schneider Duncan, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Juan Espino-Torres, Florence
Petitioner



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.
                        STATE v. ESPINO-TORRES
                          Decision of the Court

J O N E S, Judge:

¶1             Juan Espino-Torres petitions 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.

¶2           A jury found Espino-Torres guilty of two counts of sexual
conduct with a minor under the age of fifteen, both class two felonies and
dangerous crimes against children; one count of sexual abuse of a minor
under the age of fifteen, a class three felony; and three counts of sexual
conduct with a minor, all class six felonies. The trial court imposed
consecutive twenty-year terms of imprisonment for the sexual conduct
charges and concurrent terms of lifetime probation on the remaining
counts. Torres was acquitted of three additional charges for attempted
molestation of a child, sexual abuse, and indecent exposure.

¶3             Espino-Torres’ convictions and sentences were affirmed on
direct appeal. See State v. Espino-Torres, 1 CA-CR 09-0212, 2009 WL 4877735
(Ariz. App. Dec. 17, 2009) (mem. decision). Following three other
unsuccessful petitions, Espino filed the underlying petition for post-
conviction relief — his fourth. Within that petition, Espino-Torres alleged
trial counsel was ineffective because he: (1) would not allow Espino-Torres
to testify in his own defense; (2) did not file a “bill of particulars”;
(3) permitted amendments to the indictment; and (4) did not hire an expert
on suppressed memory. Espino-Torres also claimed actual innocence,
disputed facts from the trial, and claimed he had an alibi for certain charges
because he was in federal custody at the time the incidents allegedly
occurred. In support of these claims, Espino-Torres attached declarations
of innocence, along with portions of trial transcripts and federal
immigration documents relating to his custodial status. The trial court
summarily dismissed his petition after noting most of the claims, including
ineffective assistance of counsel, were successive, untimely, and precluded
under Arizona Rule of Criminal Procedure 32.2(a). The court also found
Espino-Torres’ custodial status was not newly discovered evidence and that
he failed to establish his “actual innocence” by clear and convincing
evidence. See Ariz. R. Crim. P. 32.1(e), (h). Therefore, the court concluded
the exceptions allowing untimely or successive petitions found in Rule
32.2(b) did not apply. Espino-Torres then petitioned this Court for review.1


1     Espino-Torres moved for reconsideration of the trial court’s
dismissal of his fourth petition for post-conviction relief, which was not



                                      2
                         STATE v. ESPINO-TORRES
                           Decision of the Court

¶4             We review the trial court’s ruling on a petition for post-
conviction relief for an abuse of discretion. State v. Jenkins, 193 Ariz. 115,
118 (App. 1998) (citing State v. Schrock, 49 Ariz. 433, 441 (1986)). We find
none. The record reflects Espino-Torres could have and, at least to some
extent, did raise his claims of ineffective assistance of counsel in prior post-
conviction relief proceedings; these claims are therefore successive and
precluded. See Ariz. R. Crim. P. 32.2(a). Moreover, in regard to the claim
counsel prevented Espino-Torres from testifying, we note Espino-Torres
was advised of his right to testify on the record and simply declined to do
so.

¶5            We further agree with the trial court that Espino-Torres failed
to present a colorable claim of newly discovered evidence under Rule
32.1(e)(2). Espino-Torres presence in federal custody is not new evidence
that could not have been located with due diligence. See Ariz. R. Crim. P.
32.1(e) (requiring “[t]he defendant exercise[] due diligence in securing the
newly discovered material facts”). Moreover, the evidence he presents
would not likely change the verdict. See Ariz. R. Crim. P. 32.1(e) (permitting
relief where the defendant shows “[n]ewly discovered material facts
probably exist and such facts probably would have changed the verdict or
sentence”); State v. Mann, 117 Ariz. 517, 520 (App. 1977) (“It is not enough
that newly offered evidence merely bolsters, impeaches or contradicts the
testimony given at trial; it must appear probable that admission of the new
evidence would have changed the result of the trial.”) (citing State v.
Morrow, 111 Ariz. 268, 270 (1974)). Espino-Torres presented evidence
showing he was in federal custody for a narrow timeframe in May 1996.
And, Espino-Torres was acquitted for both counts alleging misconduct that
occurred during that time. The remainder of the charges, and all of the
convictions, resulted from later incidents, occurring at times when there is
no evidence to suggest Espino-Torres was in custody.

¶6             Espino-Torres’ actual innocence claim likewise fails. To
obtain post-conviction relief on the grounds of actual innocence, the
defendant must “demonstrate[] by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would have found defendant guilty of the
underlying offense beyond a reasonable doubt.” Ariz. R. Crim. P. 32.1(h).
Actual innocence requires “factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Sawyer v. Whitley, 505
U.S. 333, 339 (1992)). “To be colorable, the claim must have the appearance

ruled upon prior to our consideration of Espino-Torres’ petition for review.
Because we find no abuse of discretion in the ruling, the motion is denied.


                                       3
                         STATE v. ESPINO-TORRES
                           Decision of the Court

of validity, a determination that the trial court is in a better position to make
than this [C]ourt.” State v. Boldrey, 176 Ariz. 378, 380 (App. 1993) (citing
State v. Adamson, 136 Ariz. 250, 265 (1983)). A defendant’s self-serving
affidavit alone is generally insufficient. See State v. Wilson, 179 Ariz. 17, 20
(App. 1993) (citing State v. Coleman, 152 Ariz. 583, 585 (App. 1987), and then
State v. Smith, 169 Ariz. 243, 247 (App. 1991)). Applying this standard, we
cannot say the trial court abused its discretion in concluding Espino-Torres’
affidavits protesting his innocence, immigration documents establishing an
alibi for the crimes for which he was acquitted, and disputes regarding the
interpretation of the evidence establish the existence of a colorable claim for
actual innocence of the crimes for which he was convicted.

¶7              Finally, to the extent Espino-Torres adds additional claims for
relief not previously addressed by the trial court, we do not consider them.
A petition for review may not present issues not first presented to the trial
court. See State v. Bortz, 169 Ariz. 575, 577 (App. 1991) (citing State v.
Ramirez, 126 Ariz. 464, 468 (App. 1980)); Ariz. R. Crim. P. 32.9(c)(1)(ii)
(requiring the petition for review identify “[t]he issues which were decided by
the trial court and which the defendant wishes to present to the appellate
court for review”) (emphasis added); see also State v. Smith, 184 Ariz. 456,
459 (1996) (holding there is no right to appellate review for fundamental
error in a post-conviction relief proceeding). Nor may a defendant amend
his petition in the trial court to raise new issues absent leave of court upon
a showing of good cause. Ariz. R. Crim. P. 32.6(d).

¶8            Finding no abuse of discretion, we grant review and deny
relief.




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




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