State v. Orduno

Opinion

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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.

ADAN ORDUNO JR., Petitioner.

No. 1 CA-CR 26-0075 PRPC

FILED 08-26-2026

Petition for Review from the Superior Court in Maricopa County No. CR2011-156533-002

The Honorable Pamela Hearn Dunne, Judge (retired)

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix By Philip D. Garrow Counsel for Respondent

Adan Orduno Jr., Safford Petitioner

Decision of the Court

MEMORANDUM DECISION

Judge D. Andrew Gaona delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Brian Y. Furuya joined.

G A O N A, Judge:

¶1 Adan Orduno Jr. seeks review of the superior court’s dismissal of his third post-conviction relief (“PCR”) petition filed under Arizona Rule of Criminal Procedure (“Rule”) 32.1. We grant review but deny relief.

Facts and Procedural Background

¶2 In 2011, Jonathan Corrales, Orduno’s co-defendant, entered a jewelry store and took two gold chains worth between $8,000 and $8,500. State v. Orduno, 1 CA-CR14-0431, 2015 WL 6163538, *1 ¶ 2 (App. Oct. 20, 2015); see also State v. Corrales, 1 CA-CR14-0456, 2015 WL 5353524, *1 ¶ 2 (App. Sept. 15, 2015). When Corrales tried to leave without paying, he found the glass door had been locked and shot it with a handgun. Orduno, 1 CA-CR14-0431, at *1 ¶ 2; Corrales, 1 CA-CR14-0456, at *1 ¶ 2. Corrales then ran to the parking lot and jumped into the passenger side of a car driven by Orduno. Orduno, 1 CA-CR14-0431, at *1 ¶ 2.

¶3 Law enforcement later spotted Orduno’s car and tried to pull it over. Id. at *1 ¶ 3. Orduno fled, and Corrales fired multiple gunshots at pursuing officers out the passenger window. Id. The gunshots broke an officer’s windshield, covering his face and body in glass. Id. Another officer injured his arm trying to avoid the gunfire. Id.

¶4 Orduno and Corrales were eventually apprehended after police located the vehicle with the gun hidden nearby. Id. at *1 ¶ 4. Police executed a search warrant at Orduno’s apartment, where they found two .40 caliber handguns. Id.

¶5 A grand jury indicted Orduno for armed robbery, theft, unlawful flight from law enforcement vehicle, four counts of aggravated assault, attempted first-degree murder, misconduct involving weapons, and drive-by shooting. The state alleged that Orduno was on probation at the time of the offenses and had prior felony convictions. A jury convicted

3

Decision of the Court

Orduno on all charges, and the superior court sentenced him as a repetitive offender to 34 years’ incarceration.

¶6 Orduno appealed, but his counsel found no arguable issues. Id. at *1 ¶ 1. Orduno then filed a pro per brief. Id. We found no fundamental error and affirmed his convictions and sentences. Id.

¶7 Before we decided Orduno’s direct appeal, Orduno filed a pro se “Motion in Ex Parte” in superior court, which the court treated as a PCR notice. PCR counsel filed a completion notice stating that he could find no claims for relief. The superior court allowed Orduno to file a pro per PCR. While the superior court waited for Orduno’s pro per PCR, we issued our mandate affirming his conviction and sentence. Orduno sought and received multiple extensions to file his pro per PCR, but never filed it. The superior court thus dismissed the PCR proceedings.

¶8 Orduno didn’t seek review of the dismissal of his first PCR, and instead filed a second PCR notice and a pro per PCR petition. The superior court, in a detailed order, denied Orduno’s motion for counsel, and dismissed the second PCR. Again, Orduno didn’t seek review, choosing instead to file a third PCR notice.

¶9 In Orduno’s third notice, he identified these issues:

1. The sentence imposed was not authorized by law.

2. Newly discovered material facts probably exist, and those facts probably would have changed the judgment or sentence.

3. The failure to timely file a notice of PCR was not his fault.

4. There has been a significant change in the law that would probably overturn his judgment or sentence.

In a detailed order, the superior court denied Orduno’s request to appoint counsel and dismissed the third PCR. Orduno petitioned this court for review, and we have jurisdiction under A.R.S. § 13-4239(C) and Rule 32.16.

DISCUSSION

¶10 Orduno’s petition for review raises five issues, which we reproduce verbatim from his petition for review:

4

Decision of the Court

1. Whether the superior court erred by imposing a numerical limitation on Rule 32.4(b)(3)(D) not found in the rule?

2. Whether reliance on a signed rights form alone violates due process when rejecting a right-to-counsel claim?

3. Whether the court improperly applied preclusion without determining whether claims could have been meaningfully raised?

4. Whether summary dismissal of newly discovered evidence claims without factual analysis was error?

5. Whether denial of appointment of counsel was an abuse of discretion?

¶11 “We review the superior court’s denial of [a PCR] for an abuse of discretion,” State v. Macias, 249 Ariz. 335, 339 ¶ 8 (App. 2020), but review its interpretation of rules de novo, State v. Mendoza, 248 Ariz. 6, 14 ¶ 12 (App. 2019). A defendant must strictly comply with the PCR rules to be eligible for relief. Canion v. Cole, 210 Ariz. 598, 600 ¶ 11 (2005). When the superior court commits an error of law or fails to investigate the facts supporting its decision adequately, it constitutes an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). Orduno bears the burden of proving that the superior court erred. State v. Reed, 252 Ariz. 236, 238 ¶ 6 (2021).

I. Orduno may raise only certain claims in this PCR proceeding because it is untimely and successive.

¶12 Rule 32.4 prescribes three general timing requirements for PCR petitions by defendants found guilty after a trial. Claims with a constitutional basis must be filed within 90 days of sentencing or 30 days after the mandate in the defendant’s direct appeal, whichever is later. Ariz. R. Crim. P. 32.4(b)(3)(A). Any other claim (brought under Rule 32.1(b) through (h)), such as newly discovered material facts, must be filed “within a reasonable time after discovering the basis of the claim.” Ariz. R. Crim. P. 32.4(b)(3)(B). And Rule 32.4(b)(3)(D) allows a court to excuse an untimely filing for a constitutional violation if the failure to file “was not the defendant’s fault.”

¶13 A timely PCR under Rule 32.1(a) (constitutional violations) doesn’t require the superior court to reach the merits of the defendant’s claims. That’s because a defendant cannot raise a claim that was previously

5

Decision of the Court

adjudicated on the merits in an appeal or a previous PCR proceeding, Ariz. R. Crim. P. 32.2(a)(2), or waived at trial, on appeal, or “in any previous post- conviction proceeding,” Ariz. R. Crim. P. 32.2(a)(3). This generally includes ineffective assistance of counsel (“IAC”) claims. State v. Spreitz, 202 Ariz. 1, 2 ¶ 4 (2002) (“[W]here ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.”) (emphasis omitted).

¶14 Because a PCR review petition is discretionary, we don’t review for fundamental error, State v. Smith, 184 Ariz. 456, 459 (1996), and fundamental error isn’t an exception to preclusion under the PCR rules. State v. Swoopes, 216 Ariz. 390, 403 ¶ 42 (App. 2007). A court “may determine by a preponderance of the evidence” if “an issue is precluded.” Ariz. R. Crim. P. 32.2(b); see also State v. Quijada, 246 Ariz. 356, 362 ¶ 13 n.1 (App. 2019) (we have “discretion to apply preclusion on review”).

A. The superior court did not err by finding Orduno’s third PCR petition was untimely and successive.

¶15 Orduno claims that the superior court erred by finding some of his claims precluded because Rule 32.4(b)(3)(D) allows for late filings if the defendant wasn’t at fault. We agree with the superior court.

¶16 Rule 32.4(b)(3)(D) says that “[t]he court must excuse an untimely notice requesting post-conviction relief filed under subpart (3)(A)”—constitutional claims—”if the defendant adequately explains why the failure to timely file a notice was not the defendant’s fault.” See also Ariz. R. Crim P. 32.1(a). Subpart (3)(A) governs the initial notice deadline— requiring a defendant to file a notice within 90 days after the judgment and sentence are entered, or within 30 days after the order and mandate affirming the judgment and sentence on direct appeal, whichever is later. Ariz. R. Crim. P. 32.4(b)(3)(A). The “no-fault” excuse provision of subpart (3)(D) thus applies to the initial filing deadline, not successive proceedings.

¶17 Orduno filed a timely notice for his first PCR proceeding, was provided counsel, and was allowed to file a pro per petition when his counsel found no arguable issues. But Orduno never filed a PCR petition and the court dismissed the proceeding. Because we are here in Orduno’s third PCR proceeding, his constitutional claims about ineffective assistance of trial and appellate counsel are untimely.

¶18 Orduno started the first PCR process before the mandate issued from his direct appeal. A defendant may file a PCR notice before the

6

Decision of the Court

direct appeal has concluded. See State v. Jones, 182 Ariz. 432, 433–34 (App. 1995) (a criminal defendant maintains the right to file a PCR notice while their appeal is pending). Orduno could also raise an IAC claim against appellate counsel in the first PCR proceeding after the mandate issued. See State v. Bennett, 213 Ariz. 562, 566 ¶¶ 15, 16 (2006) (a criminal defendant not represented by the same counsel as in the direct appeal must raise appellate IAC in the first PCR petition). Orduno didn’t raise an appellate IAC claim after the mandate issued, meaning he can’t raise it now. Id.; Ariz. R. Crim. P. 32.2(a)(3) (“A defendant is precluded from relief . . . based on any ground . . . waived at trial or on appeal, or in any previous post-conviction proceeding.”). At minimum, he needed to raise that claim in his second PCR proceeding. But he didn’t, nor did he petition for review from the denial of his second PCR. The issues in that proceeding aren’t before us, and any issues that could have been raised in that proceeding are now precluded. Ariz. R. Crim. P. 32.2(a)(3).

B. The superior court did not abuse its discretion by applying preclusion to Orduno’s constitutional claims.

¶19 Orduno argues the court erred by finding his claims were precluded because he could have raised them in either of his first two PCR proceedings. Orduno claims that the “could have raised” standard requires a court to analyze whether the prior proceedings afforded adequate opportunity to litigate the claim. We disagree.

¶20 Rule 32.2(a)(3) says that a “defendant is precluded from relief under Rule 32.1(a) based on any ground . . . waived at trial or on appeal, or in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Under this rule, “PCR counsel can waive most claims of [] error on the defendant’s behalf by failing to assert them in a PCR petition.” State v. Diaz, 236 Ariz. 361, 362 ¶ 8 (2014).

¶21 In determining waiver, a court looks at the claim, not the process. See State v. Traverso, 260 Ariz. 409, 417 ¶ 34 (2025) (“[W]hether a defendant must personally waive an IAC claim to warrant preclusion under Rule 32.2(a)(3) depends on the particular right implicated by the allegedly ineffective representation.”) (citation omitted). If a claim implicates a constitutional right that a defendant doesn’t have to waive personally, preclusion applies even without a showing that the defendant knowingly, voluntarily, and intelligently waived the right. State v. Espinosa, 200 Ariz. 503, 505 ¶ 7 (App. 2001). In other words, the State may simply show that a

7

Decision of the Court

defendant didn’t raise the error previously to prove the defendant waived the claim. Id.

¶22 None of the constitutional claims addressed by the superior court required a personal waiver by Orduno. The court didn’t abuse its discretion by applying preclusion to Orduno’s constitutional claims.

C. Orduno was appointed counsel in his first PCR proceeding, and he is not entitled to counsel in his untimely and successive third PCR proceeding.

¶23 Orduno claims he was entitled to counsel in his third PCR proceeding, and that the superior court’s reliance on the “rights of review notice” to deny his request violated due process. Not so.

¶24 In non-capital cases, Rule 32.5(a) requires the court to appoint counsel for an indigent defendant upon the filing of a timely first notice under Rule 32.4 if requested. But for all successive Rule 32 notices, the court “may” appoint counsel for an indigent defendant. Ariz. R. Crim. P. 32.5(a). The use of “may” rather than “must” makes clear that appointment of counsel in successive non-capital PCR proceedings is discretionary, not mandatory. Ariz. R. Crim. P. 32.5(a)

¶25 For non-precluded claims under Rule 32.2(b), the superior court doesn’t abuse its discretion by declining to appoint counsel if the PCR notice is “facially non-meritorious.” State v. Harden, 228 Ariz. 131, 134 ¶ 11 (App. 2011). The only non-precluded claim under Rule 32.2(b) raised in Orduno’s third PCR was his claim of newly discovered material facts. As noted below, infra ¶¶ 26–29, the court correctly determined that claim was facially non-meritorious, meaning Orduno wasn’t entitled to counsel, and the court didn’t abuse its discretion.

II. Orduno failed to allege a colorable claim of newly discovered material facts warranting the appointment of counsel or further proceedings.

¶26 Orduno’s third PCR notice claimed that his recent discovery of prosecutorial misconduct and the lack of notice about consecutive sentencing constituted newly discovered material facts under Rule 32.1(e). A claim of newly discovered material facts isn’t subject to preclusion under Rule 32.2(b).

¶27 Our Supreme Court has articulated a five-part test for presenting a colorable PCR claim based on newly discovered material facts

8

Decision of the Court

under Rule 32.1(e). State v. Amaral, 239 Ariz. 217, 219 ¶ 9 (2016). A defendant must allege: (1) “the evidence must appear on its face to have existed at the time of trial but be discovered after trial”; (2) the notice or petition “must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court’s attention”; (3) “the evidence must not simply be cumulative or impeaching”; (4) “the evidence must be relevant to the case”; and (5) “the evidence must be such that it would likely have altered the verdict, finding, or sentence if known at the time of trial.” Id.

¶28 Orduno fails on the first requirement. He claims that the prosecutor misrepresented material evidence that he was waiting in the getaway car based on a surveillance video. But he does not allege that the surveillance video was newly discovered; in fact, he maintains that his trial counsel “failed to properly investigate the surveillance video, object to the prosecutorial misstatements, or preserve objections for appeal.” Any argument about what was on the video is not newly discovered material facts under the rule, and the substance of Orduno’s argument appears to be a repackaged version of his now-precluded IAC claim.

¶29 Similarly, Orduno’s lack of notice about consecutive sentencing is not a material fact. The court did not abuse its discretion by dismissing this facially non-meritorious claim without appointing counsel or ordering a hearing.

CONCLUSION

¶30 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR