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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
UMAR SHUGA QURESHI, Petitioner.
No. 1 CA-CR 23-0153 PRPC
FILED 11-28-2023
Petition for Review from the Superior Court in Maricopa County
No. CR2013-427046-001
The Honorable Michael C. Blair, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Robert E. Prather
Counsel for Respondent
Umar Shuga Qureshi, Tucson
Petitioner
STATE v. QURESHI
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge D. Steven Williams and Judge Samuel A. Thumma joined.
M c M U R D I E, Judge:
¶1 Umar Shuga Qureshi petitions for review of the superior
court’s order denying his post-conviction relief (“PCR”) petition filed under
Arizona Rule of Criminal Procedure (“Rule”) 32. We grant review but deny
relief.
FACTS AND PROCEDURAL BACKGROUND
¶2 Qureshi was in a car accident that injured another driver. As
a result, in 2013, a grand jury indicted Qureshi on one count of aggravated
assault, a dangerous offense. A jury found Qureshi guilty as charged with
aggravating factors. The superior court sentenced Qureshi to ten years in
prison, and Qureshi appealed.
¶3 Before Qureshi’s conviction, he caused another car accident,
this time leading to a child’s death. Thus, in 2014, a grand jury indicted
Qureshi on one manslaughter count and two endangerment counts, all
dangerous offenses. A jury found Qureshi guilty as charged with
aggravating factors. The superior court sentenced him to concurrent
sentences of four and a half years’ imprisonment for each endangerment
count and twenty years’ imprisonment for the manslaughter count. The
court ordered the manslaughter and endangerment sentences to run
consecutively to the aggravated-assault sentence. Qureshi appealed.
¶4 This court consolidated Qureshi’s appeals. State v. Qureshi, 1
CA-CR 19-0536, 1 CA-CR 19-0537, 2020 WL 6495078, at *2, ¶ 10 (Ariz. App.
Nov. 5, 2020) (mem. decision). On appeal, Qureshi argued the superior
court erred by denying his request to represent himself in the proceedings
for the 2014 charges. Id. at *2, ¶ 11. This court held that the superior court
did not abuse its discretion because there was sufficient evidence that
Qureshi could not represent himself competently. Id. at *2, *3, ¶¶ 11, 14.
¶5 In the appeal, Qureshi also argued the superior court erred by
failing to disqualify the entire Maricopa County Attorney’s Office from his
cases. Qureshi, 1 CA-CR 19-0536, 1 CA-CR 19-0537, at *5, ¶ 25. During a
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STATE v. QURESHI
Decision of the Court
pretrial status conference for both cases, the prosecutor made a derogatory
comment about Qureshi to his counsel. Id. at ¶ 26. The County Attorney’s
Office removed the prosecutor from the cases and replaced him with other
attorneys from the office. Id. The superior court declined to disqualify the
entire office, id. at ¶ 27, and this court found no abuse of discretion, id. at *6,
¶ 30. This court affirmed Qureshi’s convictions and sentences. Id. at *6, ¶ 31.
The Arizona Supreme Court denied Qureshi’s petition for review. State v.
Qureshi, CR-20-0382-PR (Ariz. Nov. 29, 2021).
¶6 After the appeal, Qureshi submitted a PCR notice, and his
PCR counsel submitted a notice finding no colorable claims. Qureshi filed
a pro se PCR petition. He re-argued that the superior court erred by denying
his request to represent himself during the proceedings for the 2014
charges. See Ariz. R. Crim. P. 32.1(a) (A defendant may assert in a PCR that
his “conviction was obtained, or the sentence was imposed, in violation of
the United States or Arizona constitutions[.]”); Indiana v. Edwards, 554 U.S.
164, 170-71, 178 (2008) (recognizing a constitutional right to proceed
without counsel, though this right is not absolute). And he stated appellate
counsel failed to address in the opening brief that he could have raised a
“sudden passion” defense during the aggravation phase of the trial if he
were allowed to represent himself.
¶7 Qureshi also raised a vindictive prosecution claim in his PCR
petition. See Ariz. R. Crim. P. 32.1(a); State v. Mieg, 225 Ariz. 445, 448, ¶ 12
(App. 2010) (Vindictive prosecution may violate due process.). He asserted
the Maricopa County Attorney’s Office retaliated against him after he
submitted a notice of intent to file a defamation suit for the prosecutor’s
derogatory statement. To support his claim, he presented a letter from a
Maricopa County claims manager requesting his social media account
information to investigate the defamation allegations. Qureshi claimed
counsel failed to raise this issue in his appeal.
¶8 The superior court denied Qureshi’s PCR petition and the
requested evidentiary hearing. First, the superior court found that
Qureshi’s claim that he was denied the right to represent himself was
precluded because it “was specifically addressed and rejected by the Court
of Appeals.” See Ariz. R. Crim. P. 32.2(a)(2). The court also found the
vindictive prosecution claim could be precluded under Rule 32.2(a)(2)
because it stemmed from the prosecutor’s derogatory statement that led to
his removal, an issue adjudicated on appeal. In the alternative, the
vindictive prosecution claim was precluded under Rule 32.2(a)(3) because
it “arose from an issue that was raisable on appeal.” The superior court
rejected Qureshi’s “tangential remarks about issues allegedly not raised in
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STATE v. QURESHI
Decision of the Court
his opening brief on appeal” because he did not raise an appellate counsel
ineffective assistance claim and failed to produce evidence supporting such
a claim.
¶9 Qureshi petitioned for this court’s review. We have
jurisdiction under A.R.S. § 13-4239(C) and Rule 33.16(a)(1).
DISCUSSION
¶10 We review the superior court’s decision to deny
post-conviction relief for an abuse of discretion, State v. Reed, 252 Ariz. 236,
238, ¶ 6 (App. 2021), and we will affirm the superior court if the decision
“is legally correct for any reason.” State v. Roseberry, 237 Ariz. 507, 508, ¶ 7
(2015).
¶11 Generally, a defendant is precluded from relief under Rule
32.1(a) if the claim was “finally adjudicated on the merits in an appeal” or
was waived on appeal. Ariz. R. Crim. P. 32.2(a)(2), (3). After the court
identifies precluded and untimely claims, and if no remaining claims entitle
the defendant to relief, “the court must summarily dismiss the petition.”
Ariz. R. Crim. P. 32.11(a).
¶12 We agree with the superior court that Qureshi’s challenge to
the denial of his request to represent himself was “finally adjudicated on
the merits in an appeal” and thus precluded. See Ariz. R. Crim. P. 32.2(a)(2).
Also, because Qureshi could have raised the vindictive prosecution claim
on appeal, it is waived and precluded. See Ariz. R. Crim. P. 32.2(a)(3).
Qureshi does not challenge the superior court’s preclusion findings in his
review petition.
¶13 Qureshi insists he made an ineffective assistance of counsel
claim in his PCR petition. He asserts he made “crystal clear” that appellate
counsel was “insufficient” by failing to offer certain facts in his opening
brief. The superior court did not abuse its discretion by finding that
Qureshi’s remarks about appellate counsel were “tangential.” But Qureshi
did note his appellate counsel failed to raise issues, and the appellate briefs
did not discuss the vindictive prosecution claim or the “sudden passion”
defense. Thus, we will consider whether Qureshi stated a colorable claim of
ineffective assistance of appellate counsel. Whether Qureshi’s appellate
counsel was ineffective is a mixed question of fact and law, and we review
the superior court’s legal conclusions de novo. State v. Macias, 249 Ariz. 335,
340, ¶ 16 (App. 2020).
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STATE v. QURESHI
Decision of the Court
¶14 A defendant is entitled to an evidentiary hearing only on
colorable claims. State v. Runningeagle, 176 Ariz. 59, 63 (1993). A colorable
claim of ineffective assistance of counsel is “one that, if the allegations are
true, might have changed the outcome.” Id. To state a colorable ineffective
assistance of counsel claim, “a defendant must show both that counsel’s
performance fell below objectively reasonable standards and that this
deficiency prejudiced the defendant.” State v. Bennett, 213 Ariz. 562, 567,
¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
¶15 There is a strong presumption that the appellate counsel
provided effective assistance. Bennett, 213 Ariz. at 567, ¶ 22. Appellate
counsel reviews the record and is responsible for “selecting the most
promising issues to raise on appeal.” Id. Generally, counsel is not ineffective
for “selecting some issues and rejecting others” unless the defendant can
overcome the presumption and show that counsel ignored issues stronger
than those selected for appeal. Id. (quoting State v. Herrera, 183 Ariz. 642,
647 (App. 1995)). The “strategic decision to ‘winnow out weaker arguments
on appeal and focus on’ those more likely to prevail is an acceptable
exercise of professional judgment.” State v. Febles, 210 Ariz. 589, 596, ¶ 20
(App. 2005) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)) (cleaned
up).
¶16 Qureshi argues several facts that his counsel should have
raised or disputed on appeal for his self-representation claim, including
that the superior court judge was biased and that Qureshi wanted to raise
a “sudden passion” defense during the trial’s aggravation phase. But
Qureshi fails to overcome the presumption that counsel used professional
judgment to select the strongest arguments for the appeal and reject those
unlikely to prevail. See Bennett, 213 Ariz. at 567, ¶ 22. Qureshi also fails to
explain how his outcome on appeal might have been different.
Runningeagle, 176 Ariz. at 63. He argues that the superior court would have
given him a lesser sentence had he presented the “sudden passion”
mitigation evidence. But such an argument is irrelevant to the issue of how
that would have changed this court’s conclusion that the superior court did
not err by declining Qureshi’s request to represent himself.
¶17 Qureshi also asserts his counsel failed to raise a vindictive
prosecution claim on appeal. He claims appellate counsel should have
argued that the Maricopa County Attorney’s Office retaliated against him
by requesting his social media account information. But the Maricopa
County claims manager requested his account information in response to
Qureshi’s notice of intent to sue the County for defamation, not his criminal
charges. Appellate counsel was within its professional discretion to decline
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STATE v. QURESHI
Decision of the Court
to raise this argument on appeal. See Febles, 210 Ariz. at 596, ¶ 20; see also
Macias, 249 Ariz. at 341, ¶ 21 (“Appellate counsel did not render ineffective
assistance by selecting more viable issues to press on appeal.”).
¶18 Qureshi did not provide evidence that the appellate counsel’s
failure to raise other issues fell below objectively reasonable standards or
that counsel did not select the most promising issues. See Bennett, 213 Ariz.
at 567, ¶¶ 21, 22. Nor did Qureshi provide evidence from which the court
could conclude the outcome of his appeal might have been different had
counsel raised the other issues. See id. at ¶ 21.
¶19 Because Qureshi failed to state a colorable claim, the superior
court did not err by denying the petition and the request for an evidentiary
hearing.
CONCLUSION
¶20 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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