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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

MICHAEL ALLEN CHANNEL, SR.
, Plaintiff/Appellant
,

v.

STATE OF ARIZONA
, Defendant/Appellee

.

N o . 1 CA

- CV 17

- 00 11

Appeal from the Superior Court in Maricopa County

No. CV2016

- 008195 The Honorable Joshua D. Rogers
, Judge

AFFIRMED

COUNSEL

Michael Allen Channel, Sr., Tucson Plaintiff/Appellant

Arizona Attorney General’s Office
, Phoenix By Pamela J. Linnins C ounsel for Defendant/Appellee

MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined. FILED 3-6-2018CHANNEL v. STATE Decision of the Court

2 W I N T H R O P
, Presiding Judge:

¶1 Michael Allen Channel, Sr., appeals the superior court’s judgment dis missing his complaint for failure to state a claim upon which relief c an be granted. See Ariz

. R

. Civ

. P

. 12(b)(6)

. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY 1

¶2 I n July 2013
, police officers , responding to a disturbance at an apartment complex, arrested Channel after he admitted possessing a gun and that he was a prohibited possessor due to a prior felony conviction . A jury convicted him of misconduct involving weapons, the trial court sentenced him to ten years in prison , and t his court affirmed his conviction and sentence. S tate v. Channel
, 1 CA

- CR 15

- 0813, 2017 WL 1506568 ( Ariz. App. Apr. 27, 2017) (mem. decision) , at * 1

- 2, 4 , ¶ ¶ 7, 10, 22

. Channel did not file a petition for review , and on June 16, 2017, this court issued the

m andate in case number 1 CA

- CR 15

- 0813.

¶3 In the meantime, on August 18, 2016, Channel filed a civil complaint captione d “Unauthorized Practice of Law ” against the “ State of Arizona , et al.” with in which he named numerous judicial officers, attorneys, a nd law enforcement officers who he generally alleged had acted unlawfully, ostensibly stemming from his dissatisfaction with his misconduct involving weapons conviction and appeal

. 2 He also asked that

1 Channel does not cite to the record in his opening brief. An appellant must support his opening brief with citations to the record in his statements of the case and facts, as well as in his argument

. See ARCAP 13(a)(4), (5), (7). Although the State points out that we may deem his arguments waived on this basis, see

, e.g., State v. West , 238 Ariz. 482, 4 97

- 98, ¶ 55 (App. 2015)
, we decline to do so.

2 In a section of the complaint he entitled “Events,” Channel named Judge Danielle J. Viola, Commissioner Virginia L. Richter (who presided over his criminal trial and sentencing) , and Anthony Mackey , a Judge Pro Tem pore of this court, and he cited several authorities, but did not explain what conduct th ose persons had engaged in that allegedly harmed him. In a section he entitled “ Claim for Relief,” Channel asked that the case files of Judge Viola
, Commission er Richter, other judges, several deputy county attorneys, and several private attorneys be audited for “abuse of unauthorized practice of law and discretion.” He also named numerousCHANNEL v. STATE Decision of the Court

3 an outside special team of prosecutors investigate his “ Civil Claim of Judicial Ethics to the Ariz [ona] Criminal Justice Commission, ” but did not identify the judicial ethics claim to which he was referring. 3 Although C hannel’s request for deferral or waiver of service of process fees was granted
, the record does not indicate he served the original complaint on anyone except Mark Brnovich, the Arizona Attorney General. 4

¶4 Channel filed a first amended complaint o n September 19, 2016, again with a caption identifying the “State of Arizona, et al.” as the “Defendant[s].” However, his first amended complaint did not mention
any State entity, officer, or employee , and did not include any of the previous allegations or claims for relief made in his original complaint. 5

police officers who supposedly had violated his civil rights and asked that they “be imprison ed not more than five years.”

3 Channel did attach to his complaint a letter from the Arizona Criminal Justice Commission’s Executive Director stating he could not file a complaint against Com missioner Richter with that c ommission because it did not have oversight authority over Arizona’s court system.

4 The record contains two affidavits of service , each indicating Channel (through Deputy William Prather of the Maricopa County Sheriff’s Offic e’s Civil Process Section) served Brnovich with a copy of a “Summons, Civil Complaint (Unauthorized Practice of Law), [and] Civil Cover Sheet

– New Filing Only” on Se ptember 21, 2016. The first affidavit
, filed in the superior court on September 26, 2016, is signed “W. Prather.” The second affidavit, filed on October 3, 2016, contains the notation “/s/” scribbled on the signature line. Other than the signature line, the affidavits are identical, and n o other affidavits of service exist in the record for either the original complaint or any subsequent complaints

.

5 The first amended complaint appeared to be aimed at alleged wrongdoing on the part of Channel ’s appellate counsel in the appeal of his misconduct involving weapons conviction. See Channel , 1 CA

- CR 15

- 0813, 2017 WL 15065 68. Channel attached a letter from his appellate attorney dated September 7, 2016 , which referenced an August 25, 2016 letter from Channel accus ing the attorney of disclosing “false material” to this court. The attorney denied doing so, and stated he had “enclosed with this letter the August 18, 2015 transcript that [he] cited to.” The complaint accusedCHANNEL v. STATE Decision of the Court

4 ¶5 On October 3, 2016, Channel filed a sec ond amended complaint , again with a caption identif ying only the “State of Arizona, et al.” as the “Defendant[s].” 6 Channel’s allegations i n the second amended complaint , as best we can discern, comprised a general collateral attack on his criminal convic tion. Without factual support or cogent context , he

a sserted his July 2013 arrest had been illegal, his Miranda 7 rights had been violated, two unnamed county attorneys had suborned perjury at the grand jury proceedings, police officer s had committed perju ry , his attorney had failed to file a motion on his behalf, Commissioner Richter had committed ethics violations, police officers had been uncooperative in interviews, various judges had been uncooperative with his complaints, his appellate attorney had ta mpered wit h public records by sending him a fraudulent document , and numerous unnamed police officers, county attorneys, assigned defense counsel, and judges had been involved in a criminal

cover

- up involving numerous types of misconduct, which amounted to “abuse of unauthorized practice of law and discretion .” The last page of the second amended complaint
, entitled “Certificate of S ervice
, ” stated Channel mailed the complaint to the Maricopa County Superior Court Cl erk, Attorney General Brnovich , and the U nited S tates Department of Justice’s Civil Rights Division in Washington, D.C. T he record , however, contains no affidavit of service other than th ose previously mentioned in footnote four of this decision

. See supra note 4

. ¶6 The Arizona Attorney General’ s Office , representing t he State
, moved for a more definite statement under Arizona Rule of Civil Procedure 12(e). 8 The motion alleged the complaint (1) did not include sufficient factual allegations to permit the State to ascertain the lawsuit’s
nature a nd scope ; (2) at tempted to present a multitude of claims and factual allegations
, but it was unclear how the factual allegations related to the

the attorney (or perhaps the court reporter ) of submitting “fraudul ent documents.”

6 As a general rule, Channel’s second ame nded complaint superseded his original and first amended complaints and rendered them of no further effect. See Francini v. Phoenix Newspapers, Inc. , 188 Ariz. 576, 586 (App. 1996).

7 Miranda v. Arizona , 384 U.S. 436 (1966).

8 “ I f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before filing a responsive pleading.” Ariz. R. Civ. P. 12(e).CHANNEL v. STATE Decision of the Court

5 claims made ; (3) did not allege how the conduct of a specific State entity or the State in general had harmed Channel ; and (4) contained “et al.” in the caption, which did not sufficiently indicate who in addition to the State had al leged ly engaged in wrongdoing or in jured Chann el.

¶7 Channel responded that he was attempting to properly present his case of “abuse of unauthorized practice of law, ” and was being denied the right to be heard by the court concerning wrongdoing by police officers, county attorneys, judges, Commissioner Richter, and defense counsel in connection with his arrest and conviction. He reiterate d many of the allegations previously made in his original and second amended complaints, but again generally failed to provide factual support or context for those allegations
, or to identify how any alleged violations had injured him

. He stated he had ma iled the response to the Maricopa County Superior Court Clerk, the Arizona Attorney General ’s O ffice , and the U nited S tates Departm ent of Justice.

¶8 The State repl ied that (1) Channel had still not l isted the specific defendants he meant to identify as inclu ded in the “et al.” designation in the caption of his complaint ; (2) even as supplemented in his
response , Channel’s second amended complaint did not allege sufficient facts to permit any defendant to ascertain the lawsuit’s nature and scope ; (3) the court should not allow Channel to further amend his complaint because he had demonstrated that any additional amendments would be futile by continuing to fail to provide any cohesive or logical state ment of facts or legal argument ; and (4) although he was attempting to allege that the unauthorized practice of law had taken place
, this was an allegation the
court lacked jurisdiction to consider until the State Bar of Arizona had addressed the matter. The State requested that the court dismiss the matter under Arizona Rule of Civil Procedure 12(b)(1) and (6) for lack of jurisdiction and Channel’s failure to state a claim for which the court could grant r elief.

¶9 In response, Channel asked the c ourt to deny the State’s motion to dismiss because the unauthori zed practice of law claim he was alleging had taken place and he had not yet received records to provide the court with “the rest of the historical and statutory felon[ies].” He also protested the results of various bar complaints he had filed and the Sta te Bar’s conduct
, and contended the court had jurisdiction to consider these
matters

. ¶10 On January 5, 2017, the court dismissed Channel’s second amended complaint after finding Channel “would not be entitled to reliefCHANNEL v. STATE Decision of the Court

6 under any state of facts susceptible of proof under the claim stated.” On May 19, 2017, t he superior court issued a signed judgment pursuant to Arizona Rule of Civil Procedure 54(c)

. 9 W e have jurisdiction over Channel’s timely appeal pursuant to Arizona Revised Statutes section 12

– 2101(A)( 1 ) (2016)

.

ANALYSIS

¶11 We review de novo a judgment dismissing a complaint under Arizona Rule of Civil Procedure 12(b)(6). Lerner v. DMB Realty, LLC , 234 Ariz. 397, 401, ¶ 10 (App. 2014). In our review
, we look only to the complaint itself, assume th e well

- pl ed factual al legations are true, and indulge all reasonable inferences the refro m. Cullen v. Auto

- Owners Ins. Co.
, 218 Ariz. 417, 419, ¶ 7 (2008). We will affirm only if the plaintiff would not be entitled to relief under any set of facts pled that is sus ceptible of proof. Albers v. Edelson Tech. Partners L.P. , 201 Ariz. 47, 50, ¶ 7 (App. 2001).

¶12 An opening brief must state with particularity why or how the trial court erred in ruling. Modular Sys., Inc. v. Naisbitt , 114 Ariz. 582, 587 (App. 1977). Chann el fails to address the superior court’s judgment pursuant to Rule 12(b)(6) , much less id entify any error he believes that court made in issuing that judgment. Accordingly, he has waived on appeal any assertion the superior court erred. See State ex rel. Montgomery v. Mathis , 231 Ariz. 103, 124, ¶ 82 (App. 2012); see also Belen Loan Inv’rs, LLC v. Bradley , 231 Ariz. 448, 457, ¶ 22 (App. 2012) (recognizing issues not clearly raised and argued on appeal are waived and declining to address the dismissal of a claim with respect to which the appellant made no specific argument).

¶13 Moreover, even were we to consider any argument related to the dismissal not to be waived, Channel’s opening brief raises numerous allegations concerning the judicial and criminal justice system that he did not raise in his second amended complaint or his response to the State’s motion for a more definite statement. He has waived consideration of these

new a llegation s

. See Harris v. Cochise Health Sys. , 215 Ariz. 344, 349, ¶ 17 (App. 2007) (explaining why appellate courts generally do not consider issues raised for the first time on appeal); State v. Claxton , 122 Ariz. 246, 249

9 This certification was correct because only the State appeared in response to Channel’s complaint and nothing show s he served any other persons or entities mentioned in his various filings. See McHazlett v. Otis Eng’g Corp. , 133 Ariz. 530, 532 (1982) (sta ting that unserved d efendants are not parties for the purpose of Arizona Rule of Civil Procedure 54(b)’s requirement that a final judgment dispose of all claims and parties).CHANNEL v. STATE Decision of the Court

7 (App. 1979) ( “ One cannot claim the trial court erred in rejecting a theory if the theory was never presented to it. ” )

. ¶14 In addition
, Channel ’s allegations

— both those that are new and those previously raised

— clearly have as their purpose obtaining relief from his misconduct involving weapons convi ction. The superior court could not, however, have granted Channel relief from that conviction based on claims that collaterally attacked the conviction. See generally State ex rel. Collins v. Superior Court , 157 Ariz. 71, 75 (1988). Instead, i f Channel believed those persons involved in his conviction committed legal error s or abuse d their discretion, he had to raise such claims either in his direct appeal from his conviction or in a petition for post

- conviction relief under Arizona Rule of Criminal Pro cedure 32. See, e.g., State v. Glassel , 233 Ariz. 353, 354

- 55
, ¶¶ 9

- 10 (2013) ; see also State v. Shrum , 220 Ariz. 115, 118, ¶¶ 11

- 12 (2009) (stating that Rule 32 consolidated most avenues for post

- conviction relief into “a single comprehensive remedy
, ” and that it generally precludes collateral relief on a ground that was or could have been raised on direct appeal or in a previous post

- conviction relief petition)

. Channel’s civil unauthorized practice of law action is neither a direct appeal from his conviction nor a Rule 32 action , and he c annot collaterally attack his conviction through this civil action. Accordingly, the superior court correctly determined that Channel failed to state a claim for which the court could grant relief

. 10

CONCLUSION

¶15 For the foregoing reasons, we affirm the superior court’s judgment dismissing Channel’s lawsuit.

10 Because we affirm on the aforementioned bases, we do not address the State’s re maining arguments for affirming the judgment

.