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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JUSTIN LEE MARTIN, Petitioner.

                         No. 1 CA-CR 15-0129 PRPC
                              FILED 10-17-2017


    Petition for Review from the Superior Court in Maricopa County
                         No. CR2009-177237-001
                  The Honorable Daniel G. Martin, Judge

              REVIEW GRANTED AND RELIEF DENIED


                                   COUNSEL

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

Justin Lee Martin, Buckeye
Petitioner



                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Michael J. Brown joined.
                               STATE v. MARTIN
                              Decision of the Court

H O W E, Judge:

¶1            Justin Lee Martin petitions this Court for review from the
dismissal of his petition for post-conviction relief. A jury found Martin
guilty of five counts of armed robbery, one count of attempted armed
robbery, five counts of kidnapping, two counts of theft of means of
transportation, four counts of misconduct involving weapons, and one
count of burglary in the second degree.1 The convictions arose out of five
separate incidents occurring on five different dates. The trial court imposed
an aggregate sentence of four consecutive lifetimes. This Court affirmed
Martin’s convictions and sentences on direct appeal. State v. Martin, 1 CA-
CR 12-0390 (Ariz. App. Sep. 5, 2013) (mem. decision). For the following
reasons, we grant review but deny relief.

¶2             Martin timely petitioned for post-conviction relief raising
claims of ineffective assistance of counsel and prosecutorial misconduct.
Martin argued: (1) introduction at trial of evidence obtained by an
unconstitutional search and seizure; (2) any other infringement of the right
against self-incrimination; (3) denial of the constitutional right to
representation by a competent lawyer at every critical state of the
proceeding;2 and (4) unconstitutional use by the State of perjured
testimony. The trial court, having considered the State’s response,3
dismissed Martin’s petition. The court found that Martin’s claims regarding
search and seizure, self-incrimination, use of perjured testimony,
prosecutorial misconduct, and related constitutional claims were precluded
under Arizona Rule of Criminal Procedure 32.2(b). The court further found
that Martin failed to establish a colorable claim of ineffective assistance of
counsel because he failed to establish deficient performance by counsel and
failed to establish prejudice.

¶3          Martin seeks review arguing that the trial court erred by
summarily dismissing his petition without a hearing. Martin argues that he


1     The court granted a mistrial as to Counts 1, 2, 3, 4, and 5. The court
granted the State’s motion to dismiss the five counts without prejudice.

2     Before trial, Martin moved to waive counsel, seeking to represent
himself. The trial court later granted Martin’s motion to reinstate advisory
counsel as counsel of record.

3         Martin filed a reply but the trial court did not acknowledge it in its
ruling.


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                             STATE v. MARTIN
                            Decision of the Court

demonstrated a colorable claim that entitled him to relief. “A decision as to
whether a petition for post-conviction relief presents a colorable claim is, to
some extent, a discretionary decision for the trial court.” State v. D=Ambrosio,
156 Ariz. 71, 73 (1988). An appellate court will reverse a trial court’s
summary dismissal only if an abuse of discretion affirmatively appears.
State v. Watton, 164 Ariz. 323, 325 (1990).

¶4             On review, Martin states four issues: (1) whether the trial
court erred by precluding Martin’s claims of unconstitutional use of
perjured testimony; (2) whether the State’s alleged use of known false
testimony was a fundamental due process violation; (3) whether the trial
court erred by dismissing the petition without holding an evidentiary
hearing to review trial counsel’s ineffectiveness for failing to object to the
State’s unconstitutional use of perjured testimony; and (4) whether the trial
court erred by failing to consider the cumulative prejudicial effect of
multiple errors combined with the State’s use of false testimony. Martin’s
enumerated issues do not mirror those raised in the trial court and are not
specifically identified as claims of ineffective assistance of counsel.

¶5             Any claim that could have been, or was, raised on direct
appeal and that has been finally adjudicated on the merits on appeal or in
any collateral proceeding, or that was waived at trial, on appeal, or any
other collateral proceeding is precluded, except for claims raised under
Rule 32.2(b). Ariz. R. Crim. P. 32.2(a). For these claims, 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. Martin fails to do so in his
petition for review. Instead, on review, Martin states that appellate counsel
advised him that claims of perjury are most appropriately raised in post-
conviction relief, and Martin also claims that the evidence to prove his
argument is not in the trial record.

¶6             None of Martin’s claims fall within the exceptions provided
by Rule 32.2(b). Martin neither argues nor provides evidence that newly
discovered material facts entitle him to relief under Rule 32.1(e). Rather,
Martin raises substantive claims that should have been addressed at trial or
on appeal, and Martin cloaks these claims in allegations of ineffective
assistance of counsel. Rearguing substantive claims in the context of
ineffective assistance of counsel to avoid preclusion is not a valid claim. “If,
with each successive claim, a petitioner could avoid preclusion merely by
asserting that all prior counsel were ineffective, Rule 32.2(a)(3) would be
stripped of effect.” State v. Curtis, 185 Ariz. 112, 115 (App. 1995), disapproved
on other grounds by Stewart v. Smith, 202 Ariz. 446 (2002). Martin argues that
trial counsel’s performance was deficient based on trial tactics and counsel’s


                                       3
                            STATE v. MARTIN
                           Decision of the Court

failure to object, impeach witnesses, clarify the record, and investigate. The
record does not support this. “Actions which appear to be a choice of trial
tactics will not support an allegation of ineffective assistance of counsel.”
State v. Espinosa-Gamez, 139 Ariz. 415, 421 (1984). Thus, “disagreements
[over] trial strategy will not support a claim of ineffective assistance of
counsel, provided the challenged conduct had some reasoned basis.” State
v. Vickers, 180 Ariz. 521, 526 (1994). And even if counsel’s strategy proves
unsuccessful, tactical decisions normally will not constitute ineffective
assistance of counsel. See State v. Farni, 112 Ariz. 132, 133 (1975).

¶7            To state a colorable claim of ineffective assistance of counsel,
a defendant must show that counsel’s performance fell below objectively
reasonable standards and that the deficient performance prejudiced the
defendant. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); State v.
Nash, 143 Ariz. 392, 397 (1985). If a defendant fails to make a sufficient
showing on either prong of the Strickland test, the court need not determine
whether the other prong was satisfied. State v. Salazar, 146 Ariz. 540, 541
(1985). None of Martin’s claims demonstrate either deficient performance
by trial counsel or unreasonable tactical decisions. Martin proffers no law
or fact to substantiate a finding that but for trial counsel’s substandard
performance, the jury would have found Martin not guilty. A trial court
need not conduct an evidentiary hearing based on mere generalizations and
unsubstantiated claims of ineffective assistance of counsel. State v. Borbon,
146 Ariz. 392, 399 (1985). The trial court did not err when it dismissed
Martin’s petition for post-conviction relief.

¶8             Finally, Martin’s fourth issue regarding cumulative
prejudicial effect was not raised in his petition for post-conviction relief.
This Court will not consider even meritorious issues not first presented to
the trial court. State v. Wagstaff, 161 Ariz. 66, 71 (App. 1988).

¶9            Accordingly, we grant review but deny relief.




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




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