THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

HOWARD, Chief Judge.

¶1 Petitioner Manuel Moraga has petitioned this court for review of the trial court's order denying relief summarily after Moraga filed a petition for writ of habeas corpus, which the court viewed as a petition for post-conviction relief, pursuant to Rule 32, Ariz. R. Crim. P., and processed accordingly. We grant the petition but deny relief.

¶2 Moraga was tried by a jury in absentia and convicted of two counts of sale of a narcotic drug based on two sales of cocaine to undercover law enforcement officers and sentenced to presumptive, concurrent prison terms of 15.75 years. This court affirmed the convictions and the sentences on appeal. State v. Moraga, No. 2 CA-CR 2004-0390, ¶ 18 (memorandum decision filed Apr. 6, 2006). It appears Moraga commenced a post-conviction proceeding in January 2005, but that proceeding was abandoned.

¶3 In October 2006 Moraga filed a notice of post-conviction relief followed by a petition in July 2007. The trial court denied relief in October 2007 finding his claim of ineffective assistance of trial counsel was precluded because it was not raised timely; his claim of sentencing error was precluded because it could have been raised on appeal; and, his challenge to the court's jurisdiction was precluded because it did not fall within any of the exceptions to Rule 32.2 and the untimeliness of the notice was not excused. The court also denied his motion for reconsideration. This court granted Moraga's petition for review but denied relief. State v. Moraga, No. 2 CA-CR 2007-0394, ¶ 11 (memorandum decision filed June 5, 2008).

¶4 Moraga filed a petition for writ of habeas corpus in May 2012, which the trial court correctly characterized as a notice and petition for post-conviction relief, given the nature of the claims he raised. As the court noted in its minute entry order denying relief, Moraga had argued in the petition that the court had erred and violated his due process rights by excluding evidence at trial about an alleged police informant. The court correctly found that the only claims he could raise then were claims that fell within Rules 32.1(d), (e), (f), (g), or (h). See Ariz. R. Crim. P. 32.2(b). And, the court stated further, even then, Moraga would have been required to have stated "the specific exception" to the rule of preclusion within which the claim he was attempting to raise fell "and the reasons for not raising the claim in the previous petition or in a timely manner." Id. Furthermore, the court noted, Rule 32.2(b) provides that a notice must be dismissed summarily "[i]f the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner." Characterizing Moraga's claim as one pursuant to Rule 32.1(a), the court summarily dismissed the petition.

¶5 "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, ¶ 4, 166 P.3d 945, 948 (App. 2007). And if a court errs on a question of law or commits error as a matter of law, such error constitutes an abuse of discretion in denying a defendant's petition for post-conviction relief. See State v. Burgett, 226 Ariz. 85, ¶ 1, 244 P.3d 89, 90 (App. 2010).

¶6 Moraga contends on review he raised a colorable claim that his due process rights had been violated pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and that the trial court erred and violated his due process and equal protection rights by regarding his petition for writ of habeas corpus, brought pursuant to article II, § 14 of the Arizona Constitution, as a petition for post-conviction relief pursuant to Rule 32. Moraga insists the court erred by processing the petition accordingly and finding the claim untimely and precluded. But based on its contents, Moraga's petition was characterized correctly as cognizable under Rule 32.1. See Ariz. R. Crim. P. 32.3 (clarifying nature of post-conviction proceedings under Rule 32 and relation to other proceedings, including habeas corpus proceeding); see also Floyd v. Superior Court, 134 Ariz. 472, 473-74, 657 P.2d 885, 886-87 (App. 1982) (noting Rule 32 "not derived from the constitution," designed "to provide a unified procedure for the various avenues for postconviction relief," and acknowledging rule "does not displace habeas corpus"; acknowledging further "[a] habeas corpus petition may be transferred to the conviction or sentencing court and treated as a Rule 32 petition").

¶7 Promulgated by our supreme court, not, as Moraga suggests, by the legislature, Rule 32 provides criminal defendants with a different procedural vehicle for presenting certain claims, all of which relate to alleged irregularities and errors that occurred in connection with the criminal proceeding that resulted in a conviction and the sentence. See generally Ariz. R. Crim. P. 32.1; see also Ariz. Const. art. VI § 5(5) (supreme court has "[p]ower to make rules relative to all procedural matters in any court"). As the comment to Rule 32.1 makes clear, the rule was intended to "encompass all the grounds presently available in Arizona under a writ of habeas corpus, Ariz. Const. Art. 2, § 14; Ariz. Rev. Stat. Ann. §§ 13-2001 to 13-2027 (1956)." Ariz. R. Crim. P. 32.1 cmt. Rule 32.3 does not, as Moraga asserts, "conflict[] with" and is not "ambiguous" in relation to the Arizona Constitution. Nor has his ability to exercise his rights under the Arizona Constitution been thwarted by the application of the rule to the claims he has attempted to raise. "In Arizona, the writ of habeas corpus may be used only to review matters affecting a court's jurisdiction." In re Oppenheimer, 95 Ariz. 292, 297, 389 P.2d 696, 700 (1964). Thus, "[t]he writ of habeas corpus is not the appropriate remedy to review irregularities or mistakes in a lower court unless they pertain to jurisdiction." State v. Court of Appeals, 101 Ariz. 166, 168, 416 P.2d 599, 601 (1966).

¶8 We grant this petition for review but for the reasons stated, we deny relief.

PETER J. ECKERSTROM, Presiding Judge, J. WILLIAM BRAMMER, JR., Judge*, concurring.