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STATE v. GRAY, 2 CA-CR 2014-0402-PR. (2014)

Court: Court of Appeals of Arizona Number: inazco20141226006 Visitors: 5
Filed: Dec. 26, 2014
Latest Update: Dec. 26, 2014
Summary: NOT FOR PUBLICATION THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24. MEMORANDUM DECISION V SQUEZ, Judge: 1 Quezon Gray seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216
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NOT FOR PUBLICATION

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

MEMORANDUM DECISION

VÁSQUEZ, Judge:

¶1 Quezon Gray seeks review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Gray has not met his burden of establishing such abuse here.

¶2 After a jury trial, Gray was convicted of conspiracy, illegally conducting an enterprise, possession of marijuana for sale, and possession of drug paraphernalia. He was sentenced to concurrent prison terms, the longest of which were five years. We affirmed his convictions and sentences on appeal. State v. Gray, No. 1 CA-CR 10-0751 (memorandum decision filed June 26, 2012).

¶3 Gray sought post-conviction relief, and appointed counsel filed a notice stating she had reviewed the record but was "unable to find a tenable issue" to raise in a post-conviction proceeding. Gray then filed a pro se petition, claiming his trial counsel had been ineffective because he "intentionally tried to force a mistrial because he had no assistant" and was not "familiar with the evidence." He further argued that the trial court "exhibited bias towards the defense" and that appellate counsel was ineffective for failing to raise several issues on appeal. The court summarily dismissed the petition, and this petition for review followed.

¶4 On review, Gray restates his claims and asserts he is entitled to an evidentiary hearing. He asserts that the trial court "use[d] the wrong standard of review," because the court improperly "based its denial on . . . factual determination[s]" related to his claims of ineffective assistance of trial counsel.1 A defendant is entitled to an evidentiary hearing if he or she presents a colorable claim. State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993). "A colorable claim of post-conviction relief is `one that, if the allegations are true, might have changed the outcome.'" State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004), quoting Runningeagle, 176 Ariz. at 63, 859 P.2d at 173. "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006).

¶5 Specifically, Gray asserts the trial court made improper factual findings related to his arguments that counsel should have called certain witnesses to testify that police had temporarily "lost sight of the van" carrying the marijuana and that counsel should have argued that a computer cord he was carrying was compatible with his cellular telephone, not with a printer found in the home in which he was arrested. But even if we agreed with Gray that the court made improper factual determinations as to whether counsel's performance was deficient, he ignores the court's additional conclusion that he was not prejudiced by trial counsel's conduct. Thus, he has not demonstrated the court erred in rejecting these claims of ineffective assistance of trial counsel.

¶6 As to Gray's remaining claims of ineffective assistance of trial and appellate counsel, and his claim of judicial bias, we have reviewed the record and are satisfied the trial court clearly identified and thoroughly addressed those claims and correctly resolved the issues in a manner sufficient to permit this or any other court to conduct a meaningful review. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993). No purpose would be served by repeating the court's ruling in its entirety, and we therefore adopt it.

See id.

¶7 Although we grant review, we deny relief.

FootNotes


1. Gray raises this argument for the first time in his reply brief but, in our discretion, we nonetheless address it. See State v. Lopez, 217 Ariz. 433, n.4, 175 P.3d 682, 687 n.4 (App. 2008) (although issues raised for first time in reply brief generally deemed waived, court has discretion to address issues). The trial court denied Gray's petition in a brief order, stating it would issue a separate minute entry explaining its reasoning, and it did so several days later. Gray submitted his petition for review on the same day that separate minute entry was entered.
Source:  Leagle

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