NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

ROBERT P. GUEVARA, Petitioner.

No. 1 CA-CR 13-0018 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2001-004376

The Honorable Robert E. Miles, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By E. Catherine Leisch

Counsel for Respondent

Robert P. Guevara, Buckeye

Petitioner 
STATE v. GUEVARA

Decision of the Court

2

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Donn Kessler and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 Petitioner Robert P. Guevara petitions this court for review 

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

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

review but deny relief.

¶2 Guevara pleaded no contest to second degree murder, and 

the superior court sentenced him to an aggravated term of 20 years

imprisonment in 2004. Guevara now seeks review of the dismissal of his 

third post-conviction relief proceeding. We have jurisdiction pursuant to 

Arizona Rule of Criminal Procedure 32.9(c). 

¶3 Guevara argues he should be resentenced pursuant to 

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 

2d 403 (2004), because the superior court, rather than a jury, determined 

the existence of aggravating factors for sentencing purposes. He also 

argues his trial counsel and first post-conviction relief counsel were 

ineffective for failing to raise the Apprendi and Blakely issues in a timely 

fashion or otherwise explain his rights under those cases.

¶4 We deny relief. Guevara raised these same claims regarding

Apprendi, Blakely, and the alleged ineffective assistance of his trial counsel 

in a 2010 writ of coram nobis, which the superior court treated as Guevara’s 

second post-conviction relief proceeding. He could have also raised the 

claims regarding his first post-conviction relief counsel at that time. As a 

general rule, any claim a defendant raised or could have raised in a prior

post-conviction relief proceeding is precluded. Ariz. R. Crim. P. 32.2(a). 

Further, none of the exceptions under Arizona Rule of Criminal Procedure 

32.2(b) apply here. 

¶5 Guevara argues Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 

182 L. Ed. 2d 272 (2012), constitutes a significant change in the law that 

allows him to raise his untimely claim of ineffective assistance of counsel. 
STATE v. GUEVARA

Decision of the Court

3

That case, however, is inapplicable in state post-conviction proceedings. 

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.

Id. at 1320. Accordingly, while Guevara may not raise an untimely 

ineffective assistance of counsel claim in state court post-conviction 

proceedings, he may seek habeas corpus relief in federal court based on 

such a claim if he can first show his post-conviction counsel was 

ineffective. 

¶6 For the above reasons, we deny relief.