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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
AHMED JAMAL SHIREH, Petitioner.
No. 1 CA-CR 14-0703 PRPC
FILED 10-27-2016
Petition for Review from the Superior Court in Maricopa County
No. CR2011-007436-001
The Honorable Sherry K. Stephens, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent
Ahmed Jamal Shireh, Florence
Petitioner
STATE v. SHIREH
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill1 joined.
C A T T A N I, Judge:
¶1 Ahmed Jamal Shireh seeks review of the superior court’s
order dismissing his petition for post-conviction relief under Rule 32 of the
Arizona Rules of Criminal Procedure. For reasons that follow, we grant
review and deny relief.
¶2 After a jury trial, Shireh was convicted of two counts of sexual
abuse (both dangerous crimes against children) and one count of
aggravated assault. The court sentenced him to concurrent, presumptive
prison terms totaling 11.25 years, and this court affirmed his convictions
and sentences on appeal. State v. Shireh, 1 CA-CR 12-0238, 2013 WL 2444196
(Ariz. App. June 4, 2013) (mem. decision). Shireh then timely filed a first
notice of post-conviction relief. After reviewing the record, appointed
counsel found no colorable claims; Shireh did not file a pro se petition,
although permitted to do so. The court then dismissed the proceeding.
¶3 Several months later, Shireh filed a second notice of post-
conviction relief. Although he identified newly discovered evidence and
actual innocence as claims he intended to raise, his petition presented as
grounds for relief only an alleged due process violation and ineffective
assistance of trial, appellate, and Rule 32 counsel. The superior court
dismissed the petition, reasoning that ineffective assistance of post-
conviction counsel was not a colorable claim and that all claims Shireh
raised were untimely under Rule 32.4(a) and precluded under Rule
32.2(a)(2). This petition for review followed.
¶4 We review dismissal of a petition for post-conviction relief for
an abuse of discretion, State v. Swoopes, 216 Ariz. 390, 393, ¶ 4 (App. 2007),
and we discern no such error in this case.
1 The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.
2
STATE v. SHIREH
Decision of the Court
¶5 Shireh’s second petition raised issues of due process and
ineffective assistance of counsel, both claims of constitutional violations
under Rule 32.1(a). An untimely or successive petition for post-conviction
relief, however, may not raise Rule 32.1(a) claims; only claims under Rule
32.1(d) (sentence expired), (e) (newly discovered evidence), (f) (no fault for
failure to timely file notice of post-conviction relief), (g) (significant change
in the law), or (h) (actual innocence) are cognizable in an untimely or
successive petition. Ariz. R. Crim. P. 32.2(b), 32.4(a).
¶6 Moreover, the only claim Shireh could not have raised
earlier—ineffective assistance of post-conviction counsel—is not colorable.
Because non-pleading defendants have no constitutional right to counsel in
post-conviction proceedings, a claim of Rule 32 counsel’s ineffectiveness is
not cognizable. See State v. Escareno-Meraz, 232 Ariz. 586, 587, ¶ 4 (App.
2013).
¶7 Accordingly, the superior court properly dismissed Shireh’s
petition. We therefore accept review and deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
3