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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  TELLY ONTURIO BEASLEY, Petitioner.

                         No. 1 CA-CR 16-0095 PRPC
                              FILED 8-24-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2012-007326-001
                  The Honorable Jeanne M. Garcia, Judge

                  REVIEW GRANTED; RELIEF DENIED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Gerald R. Grant
Counsel for Respondent

Telly Onturio Beasley, Douglas
Petitioner
                             STATE v. BEASLEY
                             Decision of the Court



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Lawrence F. Winthrop joined.


B E E N E, Judge:

¶1            Telly Onturio Beasley (“Beasley”) petitions this court for
review from the dismissal of his petition for post-conviction relief, filed
pursuant to Arizona Rule of Criminal Procedure (“Rule”) 32. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

¶2           In 2013, a jury found Beasley guilty of four counts of forgery
and one count of possession or use of marijuana. The superior court
sentenced Beasley to concurrent one-year prison terms for the forgery
convictions and imposed a one-year term of probation for the marijuana
offense to commence upon Beasley’s release. Beasley appealed, and this
court affirmed in all respects. See State v. Beasley, 1 CA-CR 13-0592, 2014
WL 4649429, at *1 (Ariz. App. September 18, 2014) (mem. decision).

¶3             Thereafter, Beasley filed a timely notice of post-conviction
relief. Beasley subsequently filed an amended notice and an amended
petition for post-conviction relief. He raised the following claims: (1)
abridgment of his right to be present at the grand jury proceedings, thereby
depriving the superior court of subject matter jurisdiction; (2) speedy trial
violation; (3) inadmissibility of trial evidence; (4) violation of his
confrontation rights; (5) insufficient evidence and violation of Brady v.
Maryland, 373 U.S. 83 (1963); (6) erroneous jury instructions; (7) partiality of
the jury; (8) erroneous court “rulings;” (9) prosecutorial misconduct; and
(10) ineffective assistance of counsel (“IAC”). The superior court found the
claims raised in Beasley’s amended petition were precluded, except for the
IAC claim, which the court determined was not colorable. The court
summarily dismissed a claim of newly discovered evidence that Beasley
raised for the first time in his reply. Beasley also raised a claim of ineffective
assistance of appellate counsel for the first time in his reply. 1 The court
dismissed the Rule 32 proceeding and subsequently denied Beasley’s

1      In its dismissal order, the superior court did not address this claim.



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                            STATE v. BEASLEY
                            Decision of the Court

motion for rehearing. This petition for review followed. We review for an
abuse of discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶4            As an initial matter, the superior court correctly dismissed the
claims Beasley raised for the first time in his reply because Beasley waived
them. See State v. Robinson, 153 Ariz. 191, 199 (1987) (“We may affirm on
any basis supported by the record.”). “The rule that issues not clearly raised
in the opening brief are waived serves to avoid surprising the parties by
deciding their case on an issue they did not present and to prevent the court
from deciding cases with no research assistance or analytical input from
[both] parties.” State v. Lopez, 223 Ariz. 238, 240, ¶ 6 (App. 2009) (internal
quotation marks and citations omitted). This rule of waiver applies to Rule
32 proceedings. Id. at ¶ 7. A defendant may not amend a petition for post-
conviction relief to raise new issues absent leave of the court upon a
showing of good cause. Ariz. R. Crim. P. 32.6(d). Beasley improperly failed
to seek the superior court’s permission to raise new issues not presented in
his amended petition.2 Because Beasley has waived his arguments
regarding newly discovered evidence and ineffective assistance of
appellate counsel, we do not address them. See Canion v. Cole, 210 Ariz. 598,
600, ¶ 11 (2005) (“[C]ompliance with Rule 32 is not a mere formality . . . [a
petitioner must] “strictly comply” [with Rule 32 to be entitled to relief.]”).

¶5           Beasley argues the superior court erred in relying on
preclusion to dismiss the claims in his amended petition that were not
based on IAC. Beasley contends the burden was on the State to prove his
claims were precluded, and the State failed to do so.

¶6             Beasley is incorrect. Any claim that was or could have been
raised on direct appeal or in an earlier post-conviction relief proceeding is
precluded, except for claims raised under Rule 32.2(b). See Ariz. R. Crim.
P. 32.2. Beasley’s claims were, or could have been, raised in his direct
appeal. For these, the petitioner must state in the notice of post-conviction
relief why the claim was not raised before, and must set forth the specific
exception provided in Rule 32. Ariz. R. Crim. P. 32.2(b); see State v. Carriger,
143 Ariz. 142, 146 (1984) (“It is the petitioner’s burden to assert grounds that
bring him within the provisions of the Rule in order to obtain relief.”).
Beasley’s notice and amended notice failed to meet his burden. Again,
Beasley was required to strictly comply with Rule 32. See Canion, 210 Ariz.

2      We also note that nothing in the record indicates Beasley requested
leave of the superior court to file his amended notice and petition.




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                            STATE v. BEASLEY
                            Decision of the Court

at 600, ¶ 11. Because none of the exceptions under Rule 32.2(b) applied to
the claims the trial court found were precluded, no abuse of discretion
occurred.3

¶7             Regarding Beasley’s IAC claims, they were based on trial
counsel’s purported failure to: (1) argue Beasley’s speedy trial rights were
violated; (2) locate and subpoena defense witnesses; (3) investigate possible
defenses; (4) adequately challenge the State’s untimely disclosure of
evidence; (5) properly explain the untimely filing of a motion to sever the
offenses; (6) object to the admission of documents “present[ed] for hand-
writing comparison evidence;” (7) sufficiently investigate expert testimony
presented by a witness or witnesses for the State; (8) assert during opening
statements that Beasley was not contesting the marijuana charge; (9) object
to a jury instruction informing jurors that the State is not required to prove
motive; and (10) to object to the State’s attempts to shift the burden of proof.

¶8            A claim of IAC is colorable if the petitioner shows both that
trial counsel’s performance was deficient under prevailing professional
norms and that the deficient performance prejudiced him. State v. Bennett,
213 Ariz. 562, 567, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668,
688 (1984) (“The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.”).

¶9             “Defendants are not guaranteed perfect counsel, only
competent counsel.” State v. Valdez, 160 Ariz. 9, 15 (1989), overruled on other
grounds by Krone v. Hotham, 181 Ariz. 364, 366–67 (1995). Courts “must
indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” and must make “every effort .
. . to eliminate the distorting effects of hindsight[.]” Strickland, 466 U.S. at
689. Furthermore, “we must presume counsel’s conduct falls within the
wide range of reasonable professional assistance that might be considered
sound trial strategy.” State v. Denz, 232 Ariz. 441, 444, ¶ 7 (App. 2013),
quoting Strickland, 466 U.S. at 689. A petitioner bears the burden of
overcoming this presumption. State v. Gerlaugh, 144 Ariz. 449, 455 (1985).
Thus, “[d]isagreements as to trial strategy . . . will not support a claim of
ineffective assistance of counsel as long as the challenged conduct could

3      Moreover, contrary to Beasley’s assertion otherwise, the State was
not required to prove he intelligently, voluntarily, and knowingly waived
these claims. Such a showing is required only in response to errors that are
“of sufficient constitutional magnitude.” Ariz. R. Crim. P. 32.2(a)(3) cmt.
Beasley points to no authority supporting his conclusory assertion that his
claims for relief rose to such a degree of significance.


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                            STATE v. BEASLEY
                            Decision of the Court

have some reasoned basis.” State v. Meeker, 143 Ariz. 256, 260 (1984). “Nor
is every failure to object to an improper question, exhibit, or argument
worthy of being called ineffective assistance of counsel.” Valdez, 160 Ariz.
at 15.

¶10           Accordingly, a defendant’s petition must raise “some factors
that demonstrate that the attorney’s representation fell below the prevailing
objective standards.” State v. Borbon, 146 Ariz. 392, 399 (1985); see also State
v. Santanna, 153 Ariz. 147, 150 (1987) (“[p]roof of ineffectiveness must be to
a demonstrable reality rather than a matter of speculation;” courts required
to give effect to presumption of competence absent contrary evidence in
“unsupplemented record”). Therefore, to state a colorable claim, “[t]he
petitioner must offer some demonstration that the attorney’s representation
fell below that of the prevailing objective standards . . . [and] some evidence
of a reasonable probability that, but for counsel’s unprofessional errors, the
outcome of the [proceeding] would have been different.” State v. Rosario,
195 Ariz. 264, 268, ¶ 23 (App. 1999) (citations omitted).

¶11           Beasley did not raise a colorable claim of IAC because he did
not provide the superior court with relevant evidentiary support
establishing trial counsel’s purported conduct fell below prevailing
professional norms. See Ariz. R. Crim. P. 32.5 (“Affidavits, records, or other
evidence currently available to the defendant supporting the allegations of
the petition shall be attached to it.”).

¶12           Moreover, although Beasley cites authorities for general
principles of law, he neither cites nor applies authorities concluding
comparable conduct of counsel constituted ineffective assistance in the
context of the specific claims of IAC Beasley raises. Beasley’s unsupported
assertions that counsel erred is insufficient to meet his burden of
demonstrating the first Strickland requirement. See State v. Donald, 198 Ariz.
406, 414, ¶ 21 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim
“must consist of more than conclusory assertions”).

¶13           Finally, Beasley attempts to incorporate by reference issues
and arguments raised in his petition for post-conviction relief, his reply,
and his motion for rehearing. A petition for review may not incorporate by
reference any issue or argument. The petition must set forth specific claims,
present sufficient argument supported by legal authority, and include
citation to the record. Ariz. R. Crim. P. 32.9(c)(1) (petition must contain
“[t]he reasons why the petition should be granted” and either an appendix
or “specific references to the record,” but “shall not incorporate any
document by reference, except the appendices”); Ariz. R. Crim. P.


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                           STATE v. BEASLEY
                           Decision of the Court

32.9(c)(1)(ii) (petition must state “[t]he issues which were decided by the
trial court and which the defendant wishes to present to the appellate court
for review”).

¶14           Beasley fails to establish an abuse of the superior court’s
discretion in dismissing the Rule 32 proceeding; consequently, we grant
review but deny relief.




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




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