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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KEITH MICHAEL HAIRSTON, Petitioner.

No. 1 CA-CR 15-0718 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR 0000-161528

The Honorable Margaret R. Mahoney, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Keith Michael Hairston, Florence

Petitioner

MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which

Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.

FILED 10-26-2017
STATE v. HAIRSTON

Decision of the Court

2

C R U Z, Judge:

¶1 Keith Michael Hairston petitions this Court for review of the 

superior court’s order denying relief in this post-conviction proceeding. 

“We will not disturb a trial court’s ruling on a petition for post-conviction 

relief absent a clear abuse of discretion.” State v. Swoopes, 216 Ariz. 390, 393,

¶ 4 (App. 2007). Because Hairston has not sustained his burden of 

establishing such abuse here, we grant review but deny relief.

¶2 A jury found Hairston guilty on fourteen counts of armed 

robbery. Hairston admitted six prior felony convictions, and the superior 

court found the State had proved its allegation that Hairston committed the 

crimes while on probation for a federal felony offense. The court sentenced 

Hairston to nine consecutive life sentences on the individual incidents, to 

concurrent life sentences on the counts arising from the same incident, and

awarded presentence incarceration credit on all sentences. This Court 

affirmed the convictions and sentences on direct appeal. State v. Hairston, 1 

CA-CR 89-0959 (Ariz. App. Dec. 19, 1989) (mem. decision).

¶3 Ten years later, Hairston filed his first petition for postconviction relief (“PCR”).

1 He successfully argued his sentences had been 

illegally enhanced because his federal felony would not be a felony if 

committed in Arizona. The superior court resentenced Hairston to 

consecutive eighteen-year terms of imprisonment on the individual 

incidents, and to concurrent eighteen-year terms of imprisonment on the 

counts arising from the same incident. It awarded presentence 

incarceration credit for 4635 days on the first count.

¶4 Hairston then timely commenced PCR proceedings. Hairston 

argued he was entitled to presentence incarceration credit on all sentences. 

The superior court found the claim was precluded because it could have 

been raised on direct appeal, and found that even if not precluded, Hairston 

was not entitled to “double credit for presentence incarceration in 

consecutive sentences,” citing State v. McClure, 189 Ariz. 55, 57 (App. 1997).

¶5 Hairston then moved for a rehearing. Hairston argued that at 

the first sentencing, he had been awarded presentence incarceration credit 

 

1 This post-conviction relief proceeding was timely because the 

current time limits of ninety and thirty days imposed by Arizona Rule of 

Criminal Procedure (“Rule”) 32.4 are not applicable to a defendant 

“sentenced prior to September 30, 1992, who is filing his first petition for 

post-conviction relief.” Moreno v. Gonzalez, 192 Ariz. 131, 135, ¶ 22 (1998).
STATE v. HAIRSTON

Decision of the Court

3

on all sentences imposed. Even though this credit resulted in illegallylenient sentences, the State did not challenge the credit and the sentences 

were affirmed on direct appeal. He argued jeopardy had attached to the 

original sentences, and therefore the failure to award that same presentence 

incarceration credit on the new sentences violated double jeopardy. 

Hairston conceded he should have filed a notice of appeal and raised this

issue on appeal, but he argued preclusion should not apply because PCR 

counsel had failed to recognize the issue, and had failed to explain “that it 

is an issue that must be raised on appeal.”

¶6 The superior court granted the motion for rehearing, vacated 

its earlier order that had dismissed the PCR, and permitted Hairston to “file 

an amended Rule 32 petition on the issues of presentence incarceration 

credits in consecutive sentences and ineffective assistance of counsel at the 

resentencing.” Hairston then filed a supplemental petition and reasserted 

the presentence incarceration credit claim. He also argued PCR counsel had 

been ineffective for failing to raise the issue at resentencing or to advise him

of the issue and of the requirement to raise the issue on direct appeal. 

Finally, he argued preclusion should not apply because he had attempted 

to file a notice of appeal.

¶7 The State responded that the presentence incarceration credit 

claim was without merit and therefore PCR counsel had not been 

ineffective. The State pointed out that double jeopardy does not apply to 

non-capital sentences and that the law specifically prohibited the “double 

credit windfall” Hairston sought. The superior court again found the issue 

precluded because it could have been raised on direct appeal. The court 

also found Hairston’s claim was without merit. It further found that 

Hairston was not entitled to relief on the presentence incarceration credit 

claim because the original award of presentence credit on all counts was 

illegal and because double jeopardy does not apply to non-capital 

sentences. Finally, the court denied relief on the ineffective assistance of 

PCR counsel claim. Hairston sought review by this Court, but review was 

denied. State v. Hairston, 1 CA-CR 00-0950 PR (Ariz. App. July 6, 2001) 

(decision order).

¶8 Hairston then filed PCR proceedings in 2003 and again in 

2011. Both were summarily dismissed, and Hairston did not seek review

of either proceeding.

¶9 In March of 2015, Hairston filed the present PCR proceeding. 

He claimed he was entitled to a delayed appeal because the failure to timely 

appeal from his resentencing in 1999 was not his fault. He asserted his 
STATE v. HAIRSTON

Decision of the Court

4

counsel and the superior court had failed to advise him of his appellate 

rights, but he also claimed he had timely mailed his notice of appeal to the 

clerk of the superior court and attached proof of delivery dated June 4, 1999. 

Hairston did not set forth “the reasons for not raising the claim in the 

previous petition or in a timely manner” as Rule 32.2(b) requires. The 

superior court summarily dismissed the petition, and Hairston now seeks 

review.

¶10 On review Hairston argues neither his first PCR counsel nor 

the superior court advised him of his right to appeal, but he then argues he 

timely mailed his notice of appeal to the clerk of the superior court and 

provided proof of this mailing to the superior court.

2 In either event, the 

record belies Hairston’s claims, and he fails to establish any abuse of 

discretion by the superior court.

¶11 The superior court’s resentencing minute entry reflects 

Hairston was advised of his right to appeal. Hairston also signed a written 

“Notice of Rights of Review after Conviction and Procedure.” His 

signature appears directly below the following statement: “I have received 

a copy of this notice explaining my right to appeal, my right to seek postconviction relief and the procedures I must follow to exercise these rights.” 

¶12 That Hairston was aware of his right to appeal is established 

by Hairston’s own claim that he timely mailed his notice of appeal to the 

superior court. Upon examination of this claim, however, we find that the 

record does not support it. A review of Hairston’s proof of delivery dated 

June 4, 1999, and the superior court filings on June 7, 1999, reflect that 

Hairston did not file a notice of appeal. Rather, he filed a request for 

preparation of post-conviction relief record, notice of post-conviction relief, 

notice of rights of review after conviction, and notice of filing notice of postconviction relief.

¶13 Even if Hairston was unaware of his right to appeal, or even 

if he had mailed a notice of appeal to the superior court, his claim was 

properly subject to summary dismissal. Waiting sixteen years to raise the 

claim and then failing to explain why he did not raise it in an earlier PCR 

proceeding is fatal. See Ariz. R. Crim. P. 32.2(b).

 

2 Hairston also raises for the first time on review a claim of ineffective 

assistance of counsel in relation to plea negotiations. This Court will not 

consider issues raised for the first time in the petition for review. Ariz. R. 

Crim. P. 32.9(c)(1)(ii); State v. Bortz, 169 Ariz. 575, 577 (App. 1991).
STATE v. HAIRSTON

Decision of the Court

5

¶14 Accordingly, we grant review but deny relief.