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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEMOORE TERRELLE GRAY, Petitioner.

No. 1 CA-CR 19-0324 PRPC

Petition for Review from the Superior Court in Maricopa County

No. CR2017-133594-001

The Honorable Gregory Como, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Andrea L. Kever

Counsel for Respondent

Demoore Terrelle Gray, Tucson

Petitioner

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop, Judge Maria Elena Cruz, and Judge 

David B. Gass delivered the decision of the Court.

FILED 4-30-2020
STATE v. GRAY

Decision of the Court

2

PER CURIAM:

¶1 Demoore Terrelle Gray petitions this court for review from 

the dismissal of his petition for post-conviction relief (“PCR”) filed 

pursuant to Arizona Rule of Criminal Procedure (“Rule”) 33.

1 We have 

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

relief.

¶2 Gray pleaded guilty to theft of means of transportation and 

was subsequently sentenced on August 13, 2018, to 4.5 years’ 

imprisonment. On April 18, 2019, Gray filed an untimely notice of postconviction relief (“Notice”), referring generally to a purported deficiency in

his waiver of rights when he pleaded guilty. Gray also asserted his sentence 

was improper because the superior court allegedly considered an 

“inelligable [sic] prior conviction.” Further, Gray stated his forthcoming

petition would raise both an equal protection claim and a challenge to the 

superior court’s jurisdiction. Finally, Gray explained the untimeliness of 

the Notice was not his fault but “[d]ue to the lack of a law library here in 

ADOC.”

¶3 The superior court summarily dismissed the Notice because 

Gray failed to adequately explain why it was over five months late. See

Ariz. R. Crim. P. 33.2(b)(1), 33.4(b)(3)(A), (D). Gray timely filed a petition 

for review.

¶4 We review the superior court’s dismissal order for an abuse 

of discretion, Ariz. R. Crim. P. 33.2(b)(1), 33.4(b)(3)(D), which is Gray’s

burden to establish. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).

Abuse of discretion is “an exercise of discretion [that] is manifestly 

unreasonable, exercised on untenable grounds or for untenable reasons.” 

1 Effective January 1, 2020, our supreme court amended the 

post-conviction relief rules. See Order Abrogating Current Rule 32 of the 

Arizona Rules of Criminal Procedure and Adopting New Rule 32 and Rule 

33 and Related Provisions, Arizona Court Order No. R-19-0012 (Adopted 

Aug. 29, 2019). The rules relating to defendants who plead guilty are now 

codified in Rule 33. The amended rules apply to all cases pending on the 

effective date unless a court determines that “applying the rule or 

amendment would be infeasible or work an injustice.” Order at 2. Because 

there were no substantive changes to the respective rules related to this 

decision, we apply and cite to the current rules.
STATE v. GRAY

Decision of the Court

3

State v. Woody, 173 Ariz. 561, 563 (App. 1992) (quoting Williams v. Williams, 

166 Ariz. 260, 265 (App. 1990)).

¶5 To pursue post-conviction relief, a pleading defendant

generally must file a notice within ninety days after the oral 

pronouncement of sentence. Ariz. R. Crim. P. 33.1, 33.4(b)(3)(A). The court

may summarily dismiss a notice as untimely if it is not filed within ninety 

days, State v. Rosario, 195 Ariz. 264, 266, ¶ 7 (App. 1999), unless the 

defendant “adequately explains why the failure to timely file a notice was 

not the defendant’s fault.” Ariz. R. Crim. P. 33.4(b)(3)(D); see also Ariz. R. 

Crim. P. 33.2(b)(1). When making certain claims that are specified in the 

Rule—including a challenge to the court’s jurisdiction—a pleading 

defendant must file a notice “within a reasonable time after discovering the 

basis for the claim” and “explain the reasons for not raising the claim . . . in 

a timely manner.” Ariz. R. Crim. P. 33.4(b)(3)(B), 33.2(b)(1). A failure to 

provide an adequate explanation provides the superior court with

discretion to summarily dismiss the notice. Ariz. R. Crim. P. 33.2(b)(1).

¶6 Gray explained the untimeliness of his Notice as follows:

The defendant claims that he is not liable for any delayed 

claim. Due to the lack of a law library here in ADOC. [sic] 

The defendant claims that his delay in filing his notice of postconviction relief was no fault of his own. The defendant 

claims that he has been victimized a [sic] prejudiced because 

the institutions fail to provide case law or anything to base 

any points of authority on.

¶7 The superior court’s summary dismissal of the Notice was not 

an abuse of discretion. Based on his explanation, Gray clearly knew the 

Notice was late.2 Merely mentioning the “lack of a law library” does not 

explain the untimeliness, nor does his assertion on review that he was 

“forced to create” a form PCR notice because the superior court did not 

2 The record also reflects that at sentencing the superior court supplied 

Gray with a form titled “Notice of Rights of Review after Conviction in 

Superior Court.” That form expressly informs defendants their PCR notices 

must be filed within ninety days of sentencing. See Ariz. R. Crim. P. Form 

23 (2018). Although the court acknowledged it did not obtain Gray’s 

signature apparently confirming his receipt of the form, Gray did not assert 

in his Notice that he was unaware of the requirement it be filed within 

ninety days of sentencing.
STATE v. GRAY

Decision of the Court

4

provide him one. Thus, as the superior court correctly noted, Gray failed 

to adequately explain why he filed the Notice over five months after it was 

due. Gray has not established an abuse of discretion.

¶8 Regarding Gray’s other arguments in the petition for review, 

his unsupported assertion that the superior court’s dismissal of the Notice 

was “bias[ed]” fails to overcome the presumption that the court was 

unbiased. See State v. Carver, 160 Ariz. 167, 173 (1989) (“Bare allegations of 

bias and prejudice, unsupported by factual evidence, are insufficient to 

overcome the presumption of impartiality . . . .”); State v. Curry, 187 Ariz. 

623, 631 (App. 1996) (“Disagreements over rulings are insufficient to 

support recusal [on basis of purported judicial bias].”).

¶9 We further reject Gray’s argument that he is entitled to relief 

because the State did not “raise a defense of untimeliness.” Gray cites no 

authority for the proposition that an untimely notice requires a response 

before the court may dismiss it, and his reliance on Eberhart v. United States, 

546 U.S. 12 (2005), is unavailing. In that federal criminal case, the United 

States Supreme Court concluded the government could not, for the first 

time on appeal, raise the defendant’s untimeliness in seeking a new trial as 

a basis for finding the district court lacked jurisdiction to grant the new trial 

motion. Eberhart, 546 U.S. at 14-20 (rejecting government’s argument that 

district court lacked jurisdiction to consider defendant’s untimely 

supplemental new trial motion and concluding federal procedural timelimit rule is not a jurisdictional one that can be raised at any time, but rather 

is a “claim-processing rule” that the government was required to raise in 

district court). Here, Gray failed to comply with a state procedural rule’s 

time requirement for providing notice that he intended to seek relief from 

his guilty plea. And nothing in Rule 33 contemplates a response to a notice 

for post-conviction relief. See Ariz. R. Crim. P. 33.4.

¶10 We grant review and deny relief.