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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHAEL ANTHONY JEFFERSON, Petitioner.

No. 1 CA-CR 16-0067 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2010-135286-001

The Honorable Daniel J. Kiley, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Diane Meloche

Counsel for Respondent

Michael Anthony Jefferson, Eloy

Petitioner

FILED 10-31-2017
STATE v. JEFFERSON

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court, 

in which Judge Kenton D. Jones and Chief Judge Samuel A. Thumma 

joined.

D O W N I E, Judge:

¶1 Michael Anthony Jefferson petitions for review from the 

dismissal of his petition for post-conviction relief. For the following 

reasons, we grant review but deny relief.

¶2 On October 26, 2011, Jefferson was convicted, after a jury trial, 

of illegal control of an enterprise, money laundering, three counts of 

aggravated taking identity of another, fraudulent schemes and artifices, 

and trafficking in the identity of another. The jury found multiple 

aggravating factors. Jefferson was sentenced to a total of 31.5 years in 

prison.

¶3 Jefferson was initially represented by counsel at trial. On the 

third day of trial, though, he waived his right to counsel and chose to 

represent himself. Appointed counsel remained in an advisory capacity. 

On the ninth day of trial, Jefferson fled to Mexico, and the trial continued 

in his absence. The court had previously warned Jefferson that this could 

occur. Advisory counsel resumed representation of Jefferson through 

closing arguments and the verdict. Upon his return from Mexico, Jefferson 

was taken into custody. He elected to represent himself at sentencing.

¶4 During and after trial, Jefferson filed numerous motions for 

mistrial, motions to vacate, and motions to compel discovery. He also filed 

misconduct complaints against the trial judge and appointed appellate

counsel.1 Jefferson alleged, inter alia: illegal search and seizure;

prosecutorial misconduct and vindictiveness; illegal suppression of 

exculpatory evidence; judicial misconduct; ineffective assistance of counsel; 

and that he was assaulted while in custody. The trial judge recused herself 

from the sentencing hearing. 

 

1 Neither complaint resulted in action against the judge or counsel.
STATE v. JEFFERSON

Decision of the Court

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¶5 After sentencing, Jefferson’s appointed appellate counsel

filed a direct appeal, arguing: (1) the court should have sua sponte instructed 

the jury it could not consider prior convictions as evidence of guilt;

2 (2) 

Jefferson was involuntarily absent from trial; (3) the trial court applied the 

wrong standard in finding three historical prior felony convictions; and (4) 

ineffective assistance of advisory counsel. This Court affirmed Jefferson’s 

convictions and sentences. The Arizona Supreme Court denied review. 

¶6 Jefferson’s first appointed post-conviction relief counsel, after 

reviewing the record, found no meritorious claims. Jefferson filed a pro se 

petition on May 6, 2016, alleging ineffective assistance of trial counsel and 

direct appeal counsel. The State filed a response, and Jefferson filed a reply.

Due to a conflict of interest, new counsel was appointed to represent 

Jefferson and to review the record. The second attorney also found no

viable issues. The superior court dismissed the petition for post-conviction 

relief, concluding that Jefferson had simply recharacterized claims that 

could have been raised on direct appeal as ineffective assistance of counsel 

claims, and further, that the claims lacked merit, even if not precluded. 

¶7 This Court will not reverse the superior court’s decision 

absent an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441 (1986). 

Generally, a trial court abuses its discretion if it commits an error of law in 

reaching its decision or the record lacks substantial support for the court’s 

decision. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004).

¶8 Jefferson identifies the following claims for review: (1) 

whether the court erred in finding that the ineffective assistance claims 

related to alleged constitutional violations and hearsay evidence were 

precluded; (2) whether the court erred by not conducting an evidentiary 

hearing on the claim that counsel was ineffective by failing to investigate

and move for dismissal due to “prejudicial pre-indictment delay;” (3) 

whether counsel was ineffective by failing to seek dismissal on the basis of 

prosecutorial vindictiveness; (4) counsel’s alleged failure to investigate,

conduct interviews, and file a motion to suppress; (5) counsel’s alleged 

failure to investigate evidence of police brutality; (6) counsel’s failure to 

suppress evidence or prevent the suppression of evidence; (7) counsel’s 

failure to object to the court’s refusal to grant a continuance so he could hire 

a private attorney; (8) counsel’s alleged tampering with a jury member on 

the elevator during voir dire; (9) counsel’s failure to contact him when the 

prosecutor filed a notice of change of judge; (10) counsel’s failure to request 

 

2 As Jefferson was questioning a witness, he elicited evidence about 

his probation status and prior conviction. 
STATE v. JEFFERSON

Decision of the Court

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a new trial, mistrial, or dismissal after the trial judge recused herself before 

sentencing; (11) counsel’s failure to object to inadmissible hearsay; (12) 

counsel’s failure to object to allegedly false testimony; (13) counsel’s failure 

to cross-examine the State’s witnesses, requiring Jefferson to represent 

himself; (14) counsel’s failure to object when the judge and prosecutor 

purportedly confiscated a jury list; (15) counsel’s failure to file a motion for 

discovery regarding a detective’s record of misconduct; and (16) appellate 

counsel’s failure to raise meritorious claims on appeal as directed by 

Jefferson. 

¶9 Jefferson couches each of his claims as an ineffective 

assistance of counsel allegation. To the extent he is attempting to litigate 

substantive legal issues that could or should have been raised on direct 

appeal, the superior court correctly deemed those issues precluded. Ariz. 

R. Crim. P. 32.2(a). And to the extent Jefferson is alleging deficient 

performance by advisory counsel, that is not a cognizable claim. See State 

v. Russell, 175 Ariz. 529, 531 (App. 1993).

¶10 To state a colorable claim of ineffective assistance of counsel, 

a defendant must demonstrate that counsel’s performance fell below 

objectively reasonable standards and that the deficient performance 

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

State v. Nash, 143 Ariz. 392, 397 (1985). To show prejudice, a defendant must 

show that there is a “reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. If a 

defendant fails to make a sufficient showing on either prong of the 

Strickland test, the trial court need not determine whether the defendant 

satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985). 

¶11 Setting aside the fact that Jefferson chose to represent himself 

for much of the trial and filed numerous pro se motions, he has provided no 

factual basis to establish that counsel was ineffective. Ineffective assistance 

of counsel “must be a demonstrable reality rather than a matter of 

speculation.” State v. McDaniel, 136 Ariz. 188, 198 (1983). The superior 

court examined each of Jefferson’s claims and found them to be without 

merit. This court discerns no abuse of discretion. 

¶12 Jefferson alleges his appellate counsel was ineffective by 

failing to raise every issue he directed her to present. But a petitioner “must 

offer evidence of a reasonable probability that but for counsel’s 

unprofessional errors, the outcome of the appeal would have been 
STATE v. JEFFERSON

Decision of the Court

5

different.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Counsel is not 

constitutionally required to raise every non-frivolous issue on appeal if she 

determines “as a matter of professional judgment” not to present those 

issues. Jones v. Barnes, 463 U.S. 745, 751 (1983). Jefferson has provided no 

evidence that appellate counsel’s conduct fell below prevailing professional 

norms. 

¶13 The superior court did not err in concluding that Jefferson’s 

claims were without merit and that he failed to make the showing required 

by Strickland. We therefore grant review but deny relief.