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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

LOIS KAY CLOUD, Petitioner. 

No. 1 CA-CR 16-0217 PRPC 

 

Petition for Review from the Superior Court in Yuma County 

No. S1400CR200300438 

The Honorable Lawrence C. Kenworthy, Judge 

REVIEW GRANTED; RELIEF DENIED 

COUNSEL 

Yuma County Attorney’s Office, Yuma 

By Jon R. Smith 

Counsel for Respondent 

Law Offices of Mary Elizabeth Perez, San Diego, CA 

By Mary E. Perez 

Counsel for Petitioner
STATE v. CLOUD 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Paul J. McMurdie delivered the decision of the Court, in which Judge 

Peter B. Swann and Judge Jon W. Thompson joined.

M c M U R D I E, Judge: 

¶1 Lois Kay Cloud petitions for review of the dismissal of her 

petition for post-conviction relief. We have considered the petition for 

review and, for the reasons stated, grant review but deny relief. 

¶2 A jury convicted Cloud of first degree murder, conspiracy to 

commit first degree murder, solicitation to commit first degree murder, and 

facilitation to commit first degree murder. The superior court sentenced her 

to concurrent prison terms of natural life on the murder conviction, 

statutory life on the conspiracy conviction, seven years on the solicitation 

conviction, and two years on the facilitation conviction. This court affirmed 

the convictions and sentences on appeal. State v. Cloud, 1 CA-CR 10-0840, 

2014 WL 645185 (Ariz. App. Feb. 18, 2014) (mem. decision). 

¶3 Cloud filed a timely petition for post-conviction relief, raising 

claims of actual innocence, illegal sentence, and ineffective assistance of 

appellate counsel. The superior court summarily dismissed the petition, 

ruling Cloud failed to present a colorable claim for relief. This petition for 

review followed. 

¶4 On review, Cloud argues the superior court erred by 

summarily dismissing her petition without holding an evidentiary hearing 

on her claims. We review the summary dismissal of a post-conviction relief 

proceeding for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, 

¶ 17 (2006). We may affirm the superior court’s ruling “on any basis 

supported by the record.” State v. Robinson, 153 Ariz. 191, 199 (1987). 

¶5 Summary dismissal of a petition for post-conviction relief is 

appropriate “[i]f the court . . . determines that no . . . claim presents a 

material issue of fact or law which would entitle the defendant to relief 

under this rule and that no purpose would be served by any further 

proceedings.” Ariz. R. Crim. P. 32.6(c). To be entitled to an evidentiary 

hearing, a petitioner must present a colorable claim. State v. Krum, 183 Ariz. 

288, 292 (1995). A colorable claim is one that, if the allegations are true, 
STATE v. CLOUD 

Decision of the Court 

3 

would probably have changed the outcome. State v. Amaral, 239 Ariz. 217, 

220, ¶ 11 (2016). In determining whether a claim is colorable, the allegations 

are viewed in the light of the entire record. State v. Lemieux, 137 Ariz. 143, 

146 (App. 1983). 

¶6 The superior court did not err by summarily dismissing the 

petition for post-conviction relief. The actual innocence claim is the same 

claim that was raised and rejected by this court on direct appeal. Cloud, 2014 

WL 645185 at *12–13, ¶¶ 46–50. Because Cloud failed to offer anything new 

to her claim of actual innocence in her petition for post-conviction relief, the 

same analysis of the evidence that resulted in rejection of this claim on 

appeal supports the superior court’s ruling that Cloud failed to state a 

colorable claim of actual innocence. See Ariz. R. Crim. P. 32.2(a)(2) (“A 

defendant shall be precluded from relief under this rule based upon any 

ground finally adjudicated on the merits on appeal . . . .”). 

¶7 Likewise, the superior court did nor err by denying relief on 

the claim of illegal sentence. “Though the state has the burden to plead and 

prove grounds of preclusion, any court on review of the record may 

determine and hold an issue is precluded regardless of whether the state 

raises preclusion.” Ariz. R. Crim. P. 32.2(c). The illegal sentence claim is 

precluded because it was waived by the failure to raise it on direct appeal. 

Ariz. R. Crim. P. 32.2(a)(3); see also State v. Herrera, 183 Ariz. 642, 647 

(App. 1995) (holding appellate counsel’s waiver of issues on appeal binds 

the defendant, “and those waived issues cannot be resurrected in 

post-conviction proceeding”). 

¶8 Finally, the superior court did not abuse its discretion by 

ruling Cloud failed to state a colorable claim of ineffective assistance of 

appellate counsel. To state such a colorable claim, a defendant must show 

that counsel’s performance fell below objectively reasonable standards and 

that the deficient performance was prejudicial. Strickland v. Washington, 466 

U.S. 668, 687 (1984). With respect to the prejudice prong of this test, the 

defendant must show to a reasonable probability that, but for counsel’s 

deficient acts or omissions, the outcome of the case would have been 

different. State v. Schurz, 176 Ariz. 46, 58 (1993). Thus, for a claim of 

ineffective assistance of appellate counsel there must be a showing that the 

outcome of the appeal would have been different. Herrera, 183 Ariz. at 647. 

¶9 Cloud argues her appellate counsel was ineffective for failing 

to argue prejudice in regards to the claim raised on appeal that the 

conviction violated her right to a speedy trial. Specifically, she contends her 

appellate counsel should have argued that she was prejudiced by the time 
STATE v. CLOUD 

Decision of the Court 

4 

it took to bring her case to trial due to her failing health. Cloud contends 

that her health had deteriorated to the extent that she could not participate 

in her own trial. Prejudice, however, is only one of four factors an appellate 

court considers in assessing whether the right to a speedy trial has been 

violated. See State v. Henry, 176 Ariz. 569, 578–79 (1993). As this court noted 

on appeal, Cloud played a significant role in her trial’s delay. Cloud, 2014 

WL 645185 at *3, ¶ 12. On this record, the superior court could reasonably 

find that Cloud was not prejudiced by appellate counsel’s presentation of 

this issue because nothing her counsel could have argued would have 

changed the outcome on appeal. This is particularly true given this court’s 

holding on appeal that Cloud “was able to fully participate despite her 

vision and hearing problems.” Id. at *6, ¶ 27. 

¶10 Accordingly, although we grant review, we deny relief.