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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STEVEN FOSTER GUNTER, Petitioner.

No. 1 CA-CR 13-0153 PRPC

Appeal from the Superior Court in Yavapai County

No. P1300CR20090779

 P1300CR201001265

 P1300CR201100738

The Honorable Tina R. Ainley, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott

By Steven John Sisneros

Counsel for Respondent

Steven Foster Gunter, Florence

Petitioner
STATE v. GUNTER

Decision of the Court

2

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Maurice Portley joined.

T H O M P S O N:

¶1 Petitioner Steven Foster Gunter petitions this court for review 

from the dismissal of his notice of post-conviction relief. We have 

considered the petition for review and, for the reasons stated, grant review 

and deny relief. 

¶2 Gunter pled no contest in two separate cases to sexual assault, 

kidnapping, theft of a credit card, unlawful flight, endangerment, criminal 

damage, theft and issuing a bad check. This resulted in the revocation of 

Gunter's probation for criminal trespass, possession of burglary tools and 

resisting arrest in a third, earlier case. The trial court sentenced Gunter to 

an aggregate term of eighteen years' imprisonment for the three cases. 

Gunter now seeks review of the summary dismissal of his second notice of 

post-conviction relief and the accompanying memorandum.1 We have 

jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c).

¶3 Below, Gunter claimed his counsel in his first post-conviction 

relief proceeding was ineffective when he failed to raise issues regarding 

the legality and/or sufficiency of the grand jury process, the sufficiency of 

the indictments and whether prosecutorial misconduct occurred during the 

grand jury proceedings and/or the preparation of the indictments. Gunter 

also argued counsel was ineffective when he failed to argue the trial court 

lacked jurisdiction over Gunter's cases because of these alleged deficiencies 

in the grand jury process and the indictments. Finally, Gunter claimed

post-conviction relief counsel was ineffective when he failed to argue that 

Gunter's trial counsel should have raised these issues before Gunter entered 

his pleas. 

¶4 We deny relief. Rather than set forth specific claims 

supported by legal argument in his petition for review, Gunter attempts to 

 

1 While the order of dismissal below and the petition for review identify all 

three cases, Gunter only sought post-conviction relief in the two later cases. 

(C 52.) 
STATE v. GUNTER

Decision of the Court

3

incorporate by reference the petition he filed below into his petition for 

review. This is inappropriate. State v. Moore, 125 Ariz. 528, 529, 611 P.2d 

115, 116 (App. 1980). A petition for review may not incorporate by 

reference any issue or argument. The petition must set forth specific claims, 

present sufficient argument supported by legal authority and include 

citation to the record. State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236, 238 

(App. 1991); Ariz. R. Crim. P. 32.5, 32.9(c). While Gunter's petition for 

review does identify the general issues he raised below, merely mentioning 

an issue is not enough. State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 

1119, 1147 n.9 (2004)

¶5 Even if we assume arguendo that Gunter properly presented 

the issues for review, we deny relief because Gunter could have raised these 

issues in a timely petition for post-conviction relief after the dismissal of his 

of-right petition on November 16, 2012.

2 A defendant who seeks to claim

ineffective assistance of the defendant's "of-right" post-conviction relief 

counsel must file the second notice of post-conviction relief within thirty 

days of the issuance of the final order in the post-conviction of-right 

proceedings. Ariz. R. Crim. P. 32.4(a); State v. Pruett, 185 Ariz. 128, 131, 912 

P.2d 1357, 1360 (App. 1995). Gunter did not file a timely second notice of 

post-conviction relief. Gunter's claim that he is entitled to relief from the 

deadline pursuant to Rule 32.1(f) because of "head trauma" he allegedly 

suffered in an automobile accident in 2010 fails because Rule 32.1(f) applies 

only to the failure to file a timely notice of appeal or a notice of postconviction relief of-right. This is not an of-right proceeding. Ariz. R. Crim. 

P. 32.1(f). 

¶6 If we assume arguendo that Gunter properly presented the 

issues for review in a timely fashion, we also deny relief because Gunter 

waived these claims when he entered his pleas. A plea agreement waives 

all non-jurisdictional defenses, errors and defects which occurred prior to 

the plea. State v. Moreno, 134 Ariz. 199, 200, 655 P.2d 23, 24 (App. 1982). The 

waiver of non-jurisdictional defects includes deprivations of constitutional 

rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Despite Gunter's 

arguments to the contrary, his claims regarding the grand jury and the 

indictments are not "jurisdictional." "Jurisdiction" means "the courts' 

statutory or constitutional power to adjudicate the case." United States v. 

Cotton, 535 U.S. 625, 630 (2002) (quoting Steel Co. v. Citizens for Better Env’t, 

523 U.S. 83, 89 (1998). Defects in an indictment are not "jurisdictional" and 

 

2 There is nothing in the record to suggest Gunter filed a petition for review 

of the dismissal of his of-right petition for post-conviction relief.
STATE v. GUNTER

Decision of the Court

4

do not deprive a court of its power to adjudicate a case. Id., 535 U.S. at 630-

631. 

¶7 Gunter also argued below that the recent United States 

Supreme Court decision in Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309 

(2012), constitutes a significant change in the law that allows him to raise 

an untimely claim of ineffective assistance of counsel. Gunter is incorrect. 

Martinez held, "Where, under state law, claims of ineffective assistance of 

trial counsel must be raised in an initial-review collateral proceeding, a 

procedural default will not bar a federal habeas court from hearing a 

substantial claim of ineffective assistance at trial if, in the initial-review 

collateral proceeding, there was no counsel or counsel in that proceeding 

was ineffective." Martinez, __ U.S. at __, 132 S.Ct. at 1320. This simply 

means Gunter can seek habeas corpus relief in federal court based on 

ineffective assistance of trial counsel if he can first show either he had no 

counsel in his first post-conviction relief proceeding or counsel in his first 

post-conviction relief proceeding was ineffective. Martinez does not require 

a state court to consider all untimely claims of ineffective assistance of 

counsel raised in post-conviction proceedings. 

¶8 We grant review and deny relief.