Arizona Rule Criminal Procedure 32.2
In Stewart v. Smith, 202 Ariz. 446, P12, 46 P.3d 1067, 1071 (2002) the Arizona Supreme Court examined the distinction between claims that may be precluded under Rule 32.2 based on the defendant's mere failure to raise them previously and claims that require a personal waiver before they may be deemed waived and, therefore, precluded.
Procedurally, Smith involved a defendant who previously had litigated "a series of unsuccessful petitions for state post-conviction relief," one of which (the third) had raised IAC claims against his trial and appellate counsel. Smith, 202 Ariz. 446, P4, 46 P.3d at 1069.
As the court pointed out, the 1992 comment to Rule 32.2 acknowledged that claims of "sufficient constitutional magnitude" must be knowingly, voluntarily, and intelligently waived by the defendant before they may be precluded pursuant to Rule 32.2(a)(3). Smith, 202 Ariz. 446, P8, 46 P.3d at 1070.
The court stated:
The question whether an asserted ground is of "sufficient constitutional magnitude" to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to Rule 32.2(a)(3), does not depend upon the merits of the particular ground. It depends merely upon the particular right alleged to have been violated. 202 Ariz. 446, P10, 46 P.3d at 1071.
As the supreme court noted in Smith, when Rule 32.2 was amended in 1992, a comment was added:
"Some issues not raised at trial, on appeal, or in a previous collateral proceeding may be deemed waived without considering the defendant's personal knowledge, unless such knowledge is specifically required to waive the constitutional right involved.
If an asserted claim is of sufficient constitutional magnitude, the state must show that the defendant 'knowingly, voluntarily and intelligently' waived the claim.
For most claims of trial error, the state may simply show that the defendant did not raise the error at trial, on appeal, or in a previous collateral proceeding, and that would be sufficient to show that the defendant has waived the claim.
If defense counsel's failure to raise an issue at trial, on appeal or in a previous collateral proceedings is so egregious as to result in prejudice as that term has been constitutionally defined, such failure may be raised by means of a claim of ineffective assistance of counsel." 202 Ariz. 446, P8, 46 P.3d at 1070.
The court explained in Smith how this analytical framework is applied to claims of ineffective assistance of counsel.
With some petitions, the trial court need not examine the facts.
For example, if a petitioner asserts ineffective assistance of counsel at sentencing, and, in a later petition, asserts ineffective assistance of counsel at trial, preclusion is required without examining facts.
The ground of ineffective assistance of counsel cannot be raised repeatedly.
There is a strong policy against piecemeal litigation. See State v. Spreitz, 202 Ariz. 1, 39 P.3d 525 (2002).
In other situations, the court must determine the particular right involved by looking at the facts of the claim, not to decide its merits, but to decide whether, at its core, the claim implicates a significant right that requires a knowing, voluntary, and intelligent waiver for preclusion to apply under Rule 32.2(a)(3).
Thus, if petitioner asserts ineffective assistance of counsel for the first time in a successive Rule 32 petition, the question of preclusion is determined by the nature of the right allegedly affected by counsel's ineffective performance.
If that right is of sufficient constitutional magnitude to require personal waiver by the defendant and there has been no personal waiver, the claim is not precluded.
If it is not of such magnitude, the claim is precluded. 202 Ariz. 446, P12, 46 P.3d at 1071.