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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENDALL SHAMAAR JOHNSON, Petitioner.

No. 1 CA-CR 23-0325 PRPC

Appeal from the Superior Court in Maricopa County

No. CR2004-009960-001

The Honorable Justin Beresky, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Douglas Gerlach

Counsel for Respondent

Sandra Day O’Connor College of Law Post-Conviction Clinic, Phoenix

By Randal Boyd McDonald, Robert Joseph Dormady, Andi Humphreys

Counsel for Petitioner

FILED 2-13-2024
STATE v. JOHNSON

Decision of the Court

2

MEMORANDUM DECISION

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

in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.

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

¶1 Petitioner Kendall Shamaar Johnson petitions this court for 

review of the superior court’s dismissal of her petition for post-conviction 

relief. For the reasons stated below, we grant review and deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Johnson was convicted of six felonies in 2004, including 

burglary, kidnapping, sexual assault, theft and trafficking in stolen 

property. At the time of the offense, Johnson was on probation for 

possession of marijuana, a misdemeanor. She was sentenced to 21 years in 

prison, the presumptive prison sentences for the burglary and sexual 

assault counts. The superior court also found that Johnson violated her 

misdemeanor marijuana probation and reinstated her probation following 

the 21-year prison sentence. This court affirmed Johnson’s convictions and 

sentences on direct appeal. See State v. Johnson, 1 CA-CR 04-1013 (Ariz. App. 

Jan. 31, 2006) (mem. decision).

¶3 In 2014, about 10 years after her sentencing, Johnson 

experienced numbness in her feet and other symptoms. As her symptoms 

became more serious, Johnson sought medical care numerous times. Then, 

in 2020, sixteen years after sentencing, Johnson was diagnosed with 

primary progressive multiple sclerosis (“MS”). MS is caused by scar tissue 

developing on the central nervous system and is diagnosed using magnetic 

resonance imaging (“MRI”) and a physical examination. MS is uncurable 

and terminal. Johnson asserts she is now severely disabled, immobile and 

in constant pain.

¶4 In 2023, Johnson filed a successive notice and petition for 

post-conviction relief, arguing that her 2020 MS diagnosis was newly 

discovered evidence that would likely have changed her sentence, and that 

a significant change in the law permitting Johnson to expunge her 

marijuana misdemeanor conviction entitled her to a new sentencing 
STATE v. JOHNSON

Decision of the Court

3

hearing. See Ariz. R. Crim. P. 32.1(e) and (g). The superior court dismissed 

her petition for relief.

DISCUSSION

¶5 We review the court’s denial of post-conviction relief for an 

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

I. Johnson’s 2020 MS diagnosis is not newly discovered evidence.

¶6 Post-conviction relief may be obtained when a defendant 

presents newly discovered material facts that probably would have 

changed the verdict or sentence. Ariz. R. Crim. P. 32.1(e). A defendant is 

entitled to an evidentiary hearing on her claim for post-conviction relief if 

she presents a colorable claim (“more than a conclusory assertion”) that, if 

true, probably would have changed her sentence. State v. Donald, 198 Ariz. 

406, 414, ¶ 21 (App. 2000); Amaral, 239 Ariz. at 220, ¶ 11.

¶7 To present a colorable claim of newly discovered evidence, 

the defendant must show: (1) new evidence appeared on its face to have 

existed at the time of trial, but was discovered after trial; (2) defendant was 

diligent in discovering the facts and bringing them to the court’s attention;

(3) the evidence is not simply cumulative or impeaching; (4) the evidence is 

relevant to the case; and (5) the evidence would likely have altered the 

verdict, finding or sentence if known at the time of trial. State v. Bilke, 162 

Ariz. 51, 52–53 (1989).

¶8 Johnson argues she has a colorable claim because new 

research shows that Epstein-Barr Virus (“EBV”) is a primary contributing 

factor to later developing MS, and the majority of the population is exposed 

to EBV. Johnson also claims she was genetically predisposed to suffer from 

MS because two of her second cousins developed the disease after 

sentencing.

¶9 Johnson’s arguments fail because she did not suffer from MS 

at the time of sentencing. She displayed no symptoms of MS and could not 

have been diagnosed with MS at that time.

¶10 Even if we accept as true Johnson’s claim that she had 

contracted EBV before sentencing, it is not a condition that by itself would 
STATE v. JOHNSON

Decision of the Court

4

have changed her sentence. EBV is common among humans; MS is rare.1

Contracting EBV does not guarantee a subsequent MS diagnosis. Nor is a 

predisposition for a disorder equivalent to suffering from that disorder. 

Johnson urges us to find that exposure to EBV requires a judge to consider 

the possibility of contracting MS in sentencing. We cannot do so.

¶11 Johnson argues she is entitled to relief because two of her 

second cousins have been diagnosed with MS. She cites to a study which 

found that “[f]actors such as smoking, family history of MS, migraine, and 

vitamin D deficiency were associated with a higher risk of developing MS.” 

Maher Taan, et al., Risk Factors Associated with Multiple Sclerosis: A CaseControl Study in Damascus, Syria, 603 MS INT’L (2021). The study does not 

show that genetic predisposition alone causes MS, and Johnson’s argument

would lead to irrational results. There are many inmates who have a 

heightened risk of cancer from a history of smoking or drinking alcohol. 

Under Johnson’s proposed standard, any inmate in this category that is 

later diagnosed with cancer while serving a sentence would be entitled to a 

resentencing hearing.

¶12 Even so, Johnson argues she is entitled to an evidentiary 

hearing under State v. Cooper, 166 Ariz. 126 (1990). In Cooper, the petitioner 

alleged that he had HIV at the time of sentencing although it was not 

discovered until seven months later. Cooper, 166 Ariz. at 130. Unlike Cooper, 

however, Johnson is not claiming to have contracted MS at the time of her 

sentencing.

¶13 Finally, Johnson argues the first Bilke requirement—that the 

new evidence existed at the time of trial, which was only discovered later—

is inconsistent with the plain language of Rule 32.1(e). We are not 

persuaded. Arizona courts have applied the Bilke requirements for over 

thirty years. See, e.g., State v. Acuna Valenzuela, 245 Ariz. 197, 215, ¶ 59 

(2018); State v. King, 250 Ariz. 433, 439–40, ¶¶ 26–28 (App. 2021). And in 

Amaral, our supreme court determined that although the first Bilke

“requirement is not explicit in the rule’s text,” it is consistent with Rule 

32.1(e) because “evidence arising from events occurring after the trial are 

not newly discovered material facts.” Amaral, 239 Ariz. at 220, ¶ 13.

1 The study Johnson cites explained that MS is a rare disease while 

EBV infects roughly 95 percent of all adults. Kjetil Bjornevik et al., 

Longitudinal Analysis Reveals High Prevalence of Epstein-Barr Virus Associated 

with Multiple Sclerosis, 375 SCIENCE 296 (2022).
STATE v. JOHNSON

Decision of the Court

5

¶14 Johnson further contends the Bilke requirement is no longer 

applicable because the Arizona Rules of Criminal Procedure have been

altered since Bilke was decided. However, the only substantive change to 

Rule 32.1(e) since Bilke was the addition that newly discovered material 

facts must be “discovered after the trial or sentencing.” Ariz. R. Crim. P. 

32.1(e)(1). That language does not conflict with Bilke’s rule, confirmed by 

Amaral, that the evidence must have existed at the time of sentencing. 

Accordingly, Johnson’s argument fails.

II. Resentencing is not required because the superior court did not

violate Prop 207.

¶15 Johnson next contends the superior court wrongly considered 

her expunged marijuana conviction at sentencing. See A.R.S. 36-2862(A). 

Not so. The court only mentioned Johnson’s conviction in the context of 

probation—namely, she was on probation at sentencing and her probation 

would be reinstated after her release because she violated the terms of 

probation. Further, the court made no aggravating findings. And last, 

aside from the court mentioning probation, only Johnson’s attorney 

mentioned the marijuana conviction while addressing mitigating factors. 

Nothing in the record indicates the court improperly considered an 

expunged marijuana conviction.2 The superior court did not abuse its 

discretion in rejecting this argument. See State v. Krum, 183 Ariz. 288, 294–

95 (1995) (a petition presenting allegations that are vague, conclusory, or 

wholly incredible is subject to summary dismissal).

2 We also note that Johnson failed to attach proof that her marijuana 

conviction was expunged. Petitioners have the burden of proving their 

allegations by a preponderance of the evidence in order to be entitled to an 

evidentiary hearing. Ariz. R. Crim. P. 32.13(c); State v. Saenz, 197 Ariz. 487, 

489, ¶ 7 (App. 2000).
STATE v. JOHNSON

Decision of the Court

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CONCLUSION

¶16 We grant review and deny relief.