Background
After his co-defendant robbed a jewelry store, fired through the store’s locked glass door, and then joined Orduno in a getaway car, Orduno fled from police. During the pursuit, the co-defendant fired at pursuing officers. A jury convicted Orduno of armed robbery, theft, unlawful flight, aggravated assault, attempted first-degree murder, weapons misconduct, and drive-by shooting. The superior court imposed a 34-year prison sentence, and the Court of Appeals affirmed on direct appeal.
Orduno began a timely first post-conviction relief proceeding and received appointed counsel, but did not file a pro se petition after counsel found no arguable claims. The superior court dismissed that proceeding. He then filed a second petition, which was dismissed, and did not seek appellate review. In his third petition, Orduno alleged unlawful sentencing, newly discovered facts, no-fault untimeliness, and a significant change in the law. The superior court declined to appoint counsel and dismissed the petition.
The Court’s Holding
The Court of Appeals granted review but denied relief. It held that Orduno’s constitutional claims, including ineffective-assistance claims, were untimely and precluded because this was a successive proceeding. The rule allowing an untimely constitutional claim when the missed filing was not the defendant’s fault applies to the initial post-conviction notice deadline, not to successive proceedings.
The court also held that the superior court properly applied preclusion without separately evaluating whether Orduno had a meaningful prior opportunity to litigate each claim. Most constitutional claims may be waived by counsel’s failure to raise them, and none of Orduno’s claims involved a right requiring his personal waiver. Nor was he entitled to appointed counsel in his third, successive proceeding: appointment was discretionary, and his only potentially non-precluded claim was facially meritless.
Orduno did not state a colorable newly discovered-evidence claim. His assertions about the surveillance video concerned evidence available at trial and were, in substance, repackaged ineffective-assistance arguments. His claimed lack of notice about consecutive sentencing was not a newly discovered material fact.
Key Takeaways
- The no-fault exception for an untimely post-conviction notice applies to the initial filing deadline, not successive PCR proceedings.
- Constitutional claims generally are precluded when not raised in an earlier PCR proceeding unless they concern a right requiring the defendant’s personal waiver.
- A court may deny counsel in a successive noncapital PCR case when the remaining non-precluded claim is facially without merit.
Why It Matters
The decision underscores the strict procedural limits on successive Arizona post-conviction petitions. Defendants must raise available constitutional and ineffective-assistance claims in their initial PCR process or risk preclusion.
It also distinguishes genuinely newly discovered facts from later arguments about evidence that was available at trial. This memorandum decision is nonprecedential and may be cited only as authorized by Arizona Supreme Court Rule 111(c).