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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSUE ESTRADA CALVILLO, Petitioner.

No. 1 CA-CR 19-0239 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2013-003405-001

The Honorable William R. Wingard, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Robert E. Prather

Counsel for Respondent

Josue Estrada Calvillo, Florence

Petitioner

FILED 9-1-2020
STATE v. CALVILLO

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court, 

in which Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W E I N Z W E I G, Judge:

¶1 Josue Estrada Calvillo petitions this Court to review the 

dismissal of his petition for post-conviction relief (“PCR”). We have 

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

and deny relief.

¶2 Petitioner pled guilty to one count of sexual conduct with a 

minor, a class 2 felony, and two counts of attempted child molestation, class 

3 felonies. See A.R.S. §§ 13-1405, -1410. The superior court imposed a 

twenty-year sentence for the sexual conduct charge plus concurrent lifetime 

probation terms for the attempted molestation charges, to run 

consecutively to the prison term. By entering a guilty plea, Petitioner 

waived all non-jurisdictional defenses, errors and defects before the plea. 

State v. Flores, 218 Ariz. 407, 409-10, ¶ 6 (App. 2008).

¶3 Petitioner timely requested post-conviction relief and the 

superior court appointed defense counsel to represent him. PCR counsel 

found no colorable issues to raise after reviewing the record and 

considering Petitioner’s input. Petitioner then moved for post-conviction 

relief pro se in the superior court, challenging only his conviction for sexual 

conduct with a minor. He argued that insufficient evidence supported his 

conviction because the State suppressed exculpatory evidence in violation 

of Brady v. Maryland, 373 U.S. 83 (1963), pointing to an undisclosed (1) 

medical report finding “no signs of genital injury or trauma” to the victim 

and (2) transcript of a call between Petitioner’s wife and a family member. 

Petitioner did not otherwise challenge the factual basis supporting his 

conviction for sexual conduct with a minor. See State v. Ovante, 231 Ariz. 

180, 184, ¶ 12 (2013) (“Before accepting a plea, a court must establish a 

factual basis for each element of the crime.”); Ariz. R. Crim. P. 17.3(b). He 

also claimed ineffective assistance of counsel for failure to investigate this 

previously undisclosed evidence. The superior court summarily dismissed 

his petition. 
STATE v. CALVILLO

Decision of the Court

3

¶4 Summary dismissal is appropriate unless the petitioner states 

a colorable claim, State v. Kolmann, 239 Ariz. 157, 160, ¶ 8 (2016), meaning 

the claim, if true, “might have changed the outcome,” State v. Runningeagle, 

176 Ariz. 59, 63 (1993). We review the superior court’s denial of relief for 

an abuse of discretion. State v. Amaral, 239 Ariz. 217, 219, ¶ 9 (2016). We 

find no abuse here.

Brady Claim

¶5 The State violates “a defendant’s right to due process [under 

Brady] if it withholds evidence that is favorable to the defense and material

to the defendant’s guilt.” See Smith v. Cain, 565 U.S. 73, 75 (2012); State v. 

Benson, 232 Ariz. 452, 460, ¶ 24 (2013) (same). Evidence is “material” if 

“there is a reasonable probability that, had the evidence been disclosed, the 

result of the proceeding would have been different.” Smith, 565 U.S. at 75 

(quoting Cone v. Bell, 556 U.S. 449, 470 (2009)).

¶6 Petitioner fails to present a colorable Brady claim for two 

reasons. First, pleading defendants waive all non-jurisdictional defects 

antedating the plea, Flores, 218 Ariz. at 409-10, ¶ 6, including any pretrial

Brady violations, State v. Reed, 121 Ariz. 547, 548 (App. 1979).

¶7 Second, the undisclosed documents were neither exculpatory 

nor material. Because Petitioner’s conviction for sexual conduct with a 

minor arose from masturbatory contact (“rubbing”), not penetration, the 

lack of physical trauma to the victim’s genitals does not negate his guilt. 

And the call transcript only reflects that Petitioner denied the crime to his 

wife, which does not establish Petitioner’s innocence or disprove any 

element of sexual conduct with a minor. See A.R.S. § 13-1405(A). As such,

Petitioner has not shown a reasonable probability that disclosure of the 

medical report or transcript would have led him to reject a plea offer and 

proceed to trial. See Benson, 232 Ariz. at 460, ¶ 24. 

Ineffective Assistance of Counsel

¶8 Petitioner likewise fails to present a colorable claim for 

ineffective assistance of counsel. A petitioner “may obtain post-conviction 

relief on the basis that counsel’s ineffective assistance led [him] to make an 

uninformed decision to accept or reject a plea bargain.” State v. Banda, 232 

Ariz. 582, 585, ¶ 12 (App. 2013). To state a colorable claim, the petitioner

“must show both that counsel’s performance fell below objectively 

reasonable standards and that this deficiency prejudiced [him].” State v. 

Bennett, 213 Ariz. 562, 567, ¶ 21 (2006).
STATE v. CALVILLO

Decision of the Court

4

¶9 Petitioner cannot show that counsel’s performance was 

deficient during plea negotiations, Runningeagle, 176 Ariz. at 63, meaning 

that counsel “either (1) gave erroneous advice or (2) failed to give 

information necessary to allow the petitioner to make an informed decision 

whether to accept the plea.” State v. Donald, 198 Ariz. 406, 413, ¶ 16 (App. 

2000). Petitioner suggests his counsel was deficient because he never 

discovered the medical report or call transcript. Aside from our 

determination that this evidence was neither exculpatory nor material, 

defense counsel cannot reasonably be expected to explore possible defenses 

based on an investigation of undisclosed evidence. See Kolmann, 239 Ariz. 

at 160, ¶ 9 (We ask whether counsel’s assistance was “reasonable under 

prevailing professional norms, ‘considering all the circumstances.’”) 

(quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). Petitioner therefore 

cannot show prejudice either. See State v. Bowers, 192 Ariz. 419, 424, ¶ 19 

(App. 1998) (The prejudice requirement “is satisfied when a petitioner 

demonstrates a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and would have insisted on going to trial.”)

(internal quotation marks omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 59 

(1985)).

¶10 Nor did Petitioner “specify the acts or omissions of counsel 

that allegedly constitute ineffective assistance [of counsel].” State v. 

Santanna, 153 Ariz. 147, 149 (1987); Donald, 198 Ariz. at 413, ¶ 17 (To 

establish a colorable claim, petitioner must “present more than a conclusory 

assertion” and “should support [his] allegations by sworn statements or 

provide a satisfactory explanation of their absence.”). Petitioner only 

asserts that counsel conducted “no investigation” and failed to “challenge 

any part of the [S]tate’s case on material [or] constitutional grounds.” Cf. 

State v. Pandeli, 242 Ariz. 175, 180-83, ¶¶ 2, 9, 22 (2017) (PCR counsel 

asserted fifteen specific IAC claims, including failure to cross-examine the 

State’s key witness and failure to present petitioner’s brain imaging scans.). 

Petitioner’s inability to articulate his claim or specify why counsel’s efforts

were deficient is fatal. See State v. Leyva, 241 Ariz. 521, 526, ¶ 13 (App. 2017) 

(“[A] challenge to plea proceedings is subject to summary dismissal when 

based on ‘conclusory allegations unsupported by specifics’ or on 

‘contentions that in the face of the record are wholly incredible.’”) (quoting 

Blacklege v. Allison, 431 U.S. 63, 74 (1977)).

¶11 Lastly, Petitioner does not allege he was induced to plead 

guilty by promises or threats, and this court has rejected his “coercion” 

theory. Leyva, 241 Ariz. at 526, ¶¶ 14, 16 (A defendant “will feel ‘coerced’

in the lay sense of the word by an attorney’s recommendation to plead 

guilty, but defense counsel’s . . . honest but negative assessment of 
STATE v. CALVILLO

Decision of the Court

5

[petitioner’s] chances at trial does not constitute improper behavior or

coercion that would suffice to invalidate a plea.”) (alteration in original)

(internal quotation marks omitted) (quoting United States v. Juncal, 245 F.3d 

166, 172-74 (2d Cir. 2001)).

¶12 We therefore grant review but deny relief.