State v. Stewart ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
THOMAS STEWART, JR., Petitioner.
No. 1 CA-CR 16-0585 PRPC
FILED 8-1-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2002-020994
The Honorable Mark H. Brain, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Adena J. Astrowsky
Counsel for Respondent
Thomas Stewart, Jr., San Luis
Petitioner
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
STATE v. STEWART
Decision of the Court
W I N T H R O P, Judge:
¶1 Thomas Stewart, Jr. petitions this court for review of the
dismissal of his seventh petition for post-conviction relief proceeding. We
have considered the petition for review and, for the reasons stated, grant
review but deny relief.
¶2 The factual and procedural history is set forth in this court’s
memorandum decision issued on direct appeal and need not be repeated
here. See State v. Stewart, 1 CA-CR 04-0240, 1 CA-CR 04-0359 (Ariz. App.
Aug. 2, 2005) (consol. mem. decision). See also State v. Stewart, 2 CA-CR
2017-0163-PR, 2017 WL 2806856 (Ariz. App. June 29, 2017) (mem. decision).
¶3 Approximately thirteen years after his convictions and
sentences, Stewart commenced successive post-conviction relief (“PCR”)
proceedings by filing several pleadings, including a motion to supplement
his PCR petition with a request for deoxyribonucleic acid (“DNA”) testing.1
Although Stewart mostly resurrected claims from previous proceedings, he
also requested that the court order DNA testing of two human hairs
recovered from his vehicle.
¶4 The superior court treated the pleadings as a single petition
for DNA testing pursuant to Rule 32.12, and ordered the State to respond.
After the State responded, the superior court summarily dismissed all
claims. Stewart filed a motion for rehearing, but the motion was denied.
This petition for review followed.
¶5 “We will not disturb a trial court’s ruling on a petition for
post-conviction relief absent a clear abuse of discretion.” State v. Swoopes,
216 Ariz. 390, 393, ¶ 4, 166 P.3d 945, 948 (App. 2007). Stewart has not
sustained his burden of establishing such abuse here.
1 Stewart did not directly provide reasons for waiting approximately
thirteen years, one appeal, and six post-conviction relief proceedings before
presenting his DNA claim. Cf. Ariz. R. Crim. P. (“Rule”) 32.2(b) (stating
that a petitioner who files a successive notice of post-conviction relief must
state in the notice “meritorious reasons . . . substantiating the claim and
indicating why the claim was not stated in the previous petition or in a
timely manner”); see also State v. Petty, 225 Ariz. 369, 371, ¶ 4, 238 P.3d 637,
639 (App. 2010) (quoting Rule 32.2(b)).
2
STATE v. STEWART
Decision of the Court
¶6 Stewart argues that this court erroneously decided his case on
direct appeal. He also argues that his various claims of ineffective
assistance of counsel and prosecutorial misconduct are of such
“constitutional magnitude” that they have not been waived and he is
entitled to relief. Finally, he argues that the superior court denied his
request for DNA testing because the prosecutor is “related to an Arizona
judge.”2
¶7 We address Stewart’s last argument first. In his motion for
rehearing, Stewart argued the superior court had disregarded his DNA
claim and queried, “[I]s it because Ms. Astrowsky’s [the prosecutor’s] father
is also a judge?” The superior court noted:
Finally, a word regarding defendant’s suggestion that
the Court may be ruling “because Ms. Astrowsky’s father is
also a judge.” See Motion at p. 11. This comment originally
took the Court by surprise, and led it to investigate whether
Judge Astrowsky’s family was a victim in the underlying
case. The Court finally realized that the attorney who
responded to the Motion for Post-Conviction DNA Testing
was Adena Astrowsky. Given her bar number (as set forth on
the response), the Court suspects she is Judge Astrowsky’s
wife or sibling (Judge Astrowsky isn’t old enough to have a
daughter with a bar number in the 18,000 range). But that’s
just a guess; if this judge ever met her it was so fleeting that I
don’t recall, and her authorship of the brief had nothing to do
with this ruling, much less previous rulings.
¶8 Stewart fails to support his claim that the superior court had
an “irreconcilable conflict” with any facts or relevant law, and we do not
find the superior court’s explanation and ruling on this claim to be an abuse
of discretion.
¶9 Stewart’s claim that this court erred when it decided his case
on direct appeal is not cognizable under Rule 32.1 and, in any event, was
not raised below. Therefore, even if cognizable, we would not consider the
2 Stewart also improperly attempts to incorporate by reference other
issues presented in pleadings filed in the superior court. We do not
consider these other issues. It is not enough to incorporate by reference any
issue or argument; instead, a petitioner must set forth the claim with record
references and argument. See State v. Bortz, 169 Ariz. 575, 577, 821 P.2d 236,
238 (App. 1991).
3
STATE v. STEWART
Decision of the Court
claim. Issues not first presented to the superior court may not be presented
in the petition for review. See Bortz, 169 Ariz. at 577-78, 821 P.2d at 238-39;
Ariz. R. Crim. P. 32.9(c)(1)(ii).
¶10 Stewart also fails to show an abuse of discretion by the
superior court in dismissing the remaining claims. As to these claims, the
superior court dismissed the proceeding in an order that clearly identified
and correctly ruled upon the issues raised. Further, the court did so in a
thorough, well-reasoned manner that will allow any future court to
understand the court’s rulings. Under these circumstances, “[n]o useful
purpose would be served by this court rehashing the trial court’s correct
ruling in a written decision.” State v. Whipple, 177 Ariz. 272, 274, 866 P.2d
1358, 1360 (App. 1993). Therefore, we adopt the superior court’s ruling as
to these claims.
¶11 Accordingly, although we grant review, we deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
4