State v. Petty
In State v. Petty, 225 Ariz. 369, 238 P.3d 637 (App. 2010), the Court reversed the trial court's summary dismissal of the pleading defendant's second notice of post-conviction relief in which he had expressed his intent to investigate and possibly raise a claim of ineffective assistance of counsel in his first post-conviction proceeding. 225 Ariz. 369,1, 3, 238 P.3d at 638-39.
Petty also stated in the notice that the Legal Defender's Office had represented him in the first proceeding, and he asked the court to appoint counsel from outside that office. Id.3.
The court dismissed the notice because Petty had failed to specify which exception to the rule of preclusion the claims he intended to raise fell under and the "meritorious reasons for not raising the claim in the previous petition," as required by Rule 32.2(b). Id.4. Petty, 225 Ariz. 369,4, 238 P.3d at 639.
Petty had made clear his intent to investigate and possibly raise a claim of ineffective assistance of initial Rule 32 counsel, a claim that falls under Rule 32.1(a). Petty, 225 Ariz. 369,11, 238 P.3d at 641.
The Court concluded that, although claims under that subsection are not excepted from the general rule of preclusion, see Ariz. R. Crim. P. 32.2(b), Petty nevertheless could not be precluded from raising it in a successive post-conviction proceeding because he could not have raised it in the first proceeding. Petty, 225 Ariz. 369,11, 238 P.3d at 641.
As the Court acknowledged, counsel could not be expected to evaluate and assert his or her own ineffectiveness. Id.13
The Court concluded that Rule 32.2(b) was not implicated and, therefore, the trial court had erred by "examining only whether Petty's notice had identified nonprecluded claims falling within subsections (d) through (h) of Rule 32.1 and whether the notice contained the language required by Rule 32.2(b)." Petty, 225 Ariz. 369,12, 238 P.3d at 641.
The Court added that, because Petty had "asked for the appointment of different counsel to evaluate whether he might have a claim of ineffective assistance of his previous, of-right counsel that he could raise in the subsequent proceeding," the notice of post-conviction relief contained "sufficient information to avoid a summary dismissal . . . ." Id.14.