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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ALI NAEEM AL-ZAIDY, Petitioner.

                         No. 1 CA-CR 15-0036 PRPC
                              FILED 2-28-2017


    Petition for Review from the Superior Court in Maricopa County
                           No. CR1998-010598
            The Honorable Robert L. Gottsfield, Judge, Retired

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

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

Ali Naeem Al-Zaidy, San Luis
Petitioner
                            STATE v. AL-ZAIDY
                            Decision of the Court


                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge James P. Beene joined.


J O H N S E N, Judge:

¶1           Ali Naeem Al-Zaidy petitions this court to review the
superior court's 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           In 1998, a jury found Al-Zaidy guilty of attempted second-
degree murder, a Class 2 dangerous offense. At sentencing, the superior
court found multiple aggravating factors in addition to finding Al-Zaidy
had two historical prior felony convictions and that he committed the
offense while released from confinement.         The court imposed an
exceptionally aggravated term of 35 years' imprisonment based not on the
sentencing range for first-time dangerous offenders, but on the sentencing
range applicable to nondangerous repeat offenders. Al-Zaidy appealed his
conviction and sentence, and this court affirmed. State v. Al-Zaidy, 1 CA-
CR 99-0309 (Ariz. App. Feb. 29, 2000) (mem. decision).

¶3             Pursuant to Arizona Rule of Criminal Procedure 32, Al-Zaidy
filed a pro se petition for post-conviction relief in 2000, raising a claim of
ineffective assistance of counsel based on his lawyer's failure to challenge
the superior court's personal jurisdiction.1 Al-Zaidy also argued that his
sentence was excessive. Finding Al-Zaidy had not presented a claim for
relief, the superior court dismissed the petition.

¶4           In 2007, Al-Zaidy filed two successive petitions for post-
conviction relief. In both petitions, he argued that the United States
Supreme Court's Blakely decision probably would change his sentence
because the superior court judge, not the jury, found aggravating factors at
sentencing. See Blakely v. Washington, 542 U.S. 296 (2004). Al-Zaidy also


1      In an earlier Rule 32 proceeding, Al-Zaidy's appointed counsel
conducted a review and found no claims for relief existed. The superior
court three times extended the time by which Al-Zaidy was required to file
a pro se petition for post-conviction relief, but he did not do so. As a result,
the court summarily dismissed the first petition.


                                       2
                            STATE v. AL-ZAIDY
                            Decision of the Court

argued his sentence was cruel and unusual and, therefore, unconstitutional
under the Eighth Amendment. The court dismissed the petitions because
Blakely did not apply retroactively to Al-Zaidy's case, and the Eighth
Amendment challenge was precluded under Rule 32.2(a). See State v. Febles,
210 Ariz. 589, 591, ¶ 1 (App. 2005) (Blakely does not apply retroactively to
cases on collateral review).

¶5           In 2014, Al-Zaidy filed a "Petition for Writ of Habeas Corpus"
in superior court, again challenging the lawfulness of his sentence. The
superior court construed the filing as a petition for post-conviction relief
pursuant to Rule 32.3 and dismissed it because, among other things, it was
untimely and did not raise a claim under Rule 32.1(d), (e), (f), (g) or (h). See
Ariz. R. Crim. P. 32.4(a) (establishing time limits for commencing Rule 32
proceedings). This petition for review followed.

¶6          As he did in superior court, Al-Zaidy argues he should have
been sentenced as a first-time dangerous offender, not as a repetitive
offender.

¶7             "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). We are obliged to uphold the superior
court if the result is legally correct for any reason. State v. Perez, 141 Ariz.
459, 464 (1984); State v. Cantu, 116 Ariz. 356, 358 (1977).

¶8             Any claim that could have been (or was) raised on direct
appeal or in an earlier post-conviction relief proceeding is precluded. Ariz.
R. Crim. P. 32.2(a). Preclusion does not apply to claims raised pursuant to
Rule 32.1(d), (e), (f), (g) or (h). Although Rule 32.1(c) specifically provides
as a ground for relief a sentence that is "not in accordance with the sentence
authorized by law," claims under this subsection are not exempt from
preclusion. Ariz. R. Crim. P. 32.2(a), (b). And despite Al-Zaidy's assertion
to the contrary, even if a sentencing error is fundamental, it may be waived
for purposes of Rule 32. If the supreme court "had intended that
fundamental error be an exception to preclusion under Rule 32.2, the court
presumably would have expressly said so in the rule itself." Swoopes, 216
Ariz. at 403, ¶ 42.

¶9               Pursuant to Rule 32.4(a), Al-Zaidy's petition for post-
conviction relief was untimely, he did not raise a claim under Rule 32.1(d),
(e), (f), (g) or (h), and he could have raised the purported sentencing error
in his direct appeal. Moreover, Al-Zaidy's claim of error also fails on the
merits. See State v. Laughter, 128 Ariz. 264, 269 (App. 1980) (statutory



                                       3
                           STATE v. AL-ZAIDY
                           Decision of the Court

scheme permits a defendant convicted of a dangerous offense to be
sentenced to the increased terms applicable to repeat nondangerous
offenders). Accordingly, the superior court appropriately denied Al-
Zaidy's petition for post-conviction relief. No abuse of discretion occurred.

¶10          We grant review and deny relief.




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




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