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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VIRGIL RAY HAMPTON, Petitioner.

No. 1 CA-CR 15-0214 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2007-143631-001 DT

No. CR2008-110278-001 DT

The Honorable Steven K. Holding, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane M. Meloche

Counsel for Respondent

Virgil Ray Hampton, Kingman

Petitioner
STATE v. HAMPTON

Decision of the Court

2

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.

W I N T H R O P, Judge:

¶1 Petitioner, Virgil Ray Hampton, petitions for review of the 

dismissal of his second 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 found Hampton guilty of unlawful flight from a law 

enforcement vehicle and tampering with physical evidence in Maricopa 

County Cause No. CR2007-143631-001 DT. A second jury found him guilty 

of resisting arrest and misconduct involving weapons in Maricopa County 

Cause No. CR2008-110278-001 DT. This court affirmed the convictions and 

sentences on appeal, and Hampton filed timely petitions for postconviction relief in both cases, alleging claims of ineffective assistance of 

trial counsel. The petitions were summarily dismissed by the superior 

court in July 2011.

¶3 In January 2015, Hampton filed an untimely consolidated 

second petition for post-conviction relief in both cases, alleging his trial 

counsel provided ineffective assistance with regard to a joint plea offer and 

that he was entitled to raise this claim in a second petition for postconviction relief under the “Martinez [e]xception.” Ruling that Hampton 

had failed to state a claim for which relief could be granted in an untimely 

and successive petition for post-conviction relief, the superior court 

summarily dismissed the petition.

¶4 Relying on Martinez v. Ryan, 566 U.S. 1 (2012), Hampton 

argues the superior court erred in ruling he is precluded from raising a 

claim of ineffective assistance of counsel in an untimely and successive 

post-conviction relief proceeding. His reliance on Martinez is misplaced. In 

Martinez, the Supreme Court held that, as a matter of equity, a non-pleading 

defendant may be able to obtain federal habeas review of a claim that is 

procedurally barred if he can show ineffective assistance of his first postconviction counsel. 566 U.S. at 15-17. However, as explained in State v. 

Escareno-Meraz, 232 Ariz. 586, 587, ¶¶ 4-6, 307 P.3d 1013, 1014 (App. 2013), 
STATE v. HAMPTON

Decision of the Court

3

cert. denied, 134 S. Ct. 1943 (2014), the holding in Martinez does not apply to 

Arizona post-conviction proceedings, and thus does not permit Hampton 

to overcome the time limits of Arizona Rule of Criminal Procedure 32.4(a). 

Non-pleading defendants like Hampton “have no constitutional right to 

counsel in post-conviction proceedings,” Escareno-Meraz, 232 Ariz. at 587, 

¶ 4, 307 P.3d at 1014, and therefore a claim of ineffective assistance of Rule 

32 counsel is not cognizable under Rule 32.1. Nor can the underlying claim 

of ineffective assistance of trial counsel be directly raised in an untimely 

and successive post-conviction proceeding. See Ariz. R. Crim. P. 32.4(a); 

State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010). Thus, 

the superior court did not err in summarily dismissing Hampton’s second 

petition for post-conviction relief.

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