NOTICE: NOT FOR PUBLICATION.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 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

STATE OF ARIZONA , Respondent
,

v.

ROBERT P. GUEVARA , Petitioner

.
N o . 1 CA

- CR 13

- 0018 PRPC

Petition for Review from the Superior Court in Maricopa County No. C R2001

- 00 4376 The Honorable Robert E. Miles
, Judge

REVIEW GRANTED; RELI EF DENIED

COUNSEL
Maricopa County Attorney’s Office , Phoenix By E. Catherine Leisch

Counsel for Respondent

Robert P. Guevara
, Buckeye

PetitionerSTATE 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 pe titions 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 ple a d ed 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. G uevara 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 p ost

- conviction relief proceeding

. He could have also raised the claims regarding his first post

- conviction relief counsel at that time. As a general rule, a ny 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, n one of the excepti ons 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 collat eral proceeding, there was no counsel or counsel in t hat proceeding was ineffective.

Id. at 13 20

. 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.