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Schlundt v. Lee

United States District Court, Ninth Circuit

August 13, 2013

Gregory Linder Schlundt, Petitioner,
v.
Ron Lee, et al., Respondents.

REPORT AND RECOMMENDATION

STEVEN P. LOGAN, Magistrate Judge.

TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:

Petitioner Gregory Linder Schlundt, who is confined in the Arizona State Prison Complex, North Unit, in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).

BACKGROUND

On October 22, 1985, Petitioner was indicted by a grand jury in the Maricopa County Superior Court ("Superior Court"), Case No. CR-152452, on charges of attempted first degree murder (Count I) and armed robbery (Count II). (Doc. 8-1, Exh. A.) Although Petitioner initially entered into a plea agreement on March 19, 1986 (Doc. 8-1, Exh. D), he withdrew his plea (Doc. 8-1, Exh. F) and proceeded to trial. On June 17, 1986, a jury found Petitioner guilty of both criminal counts, and that each was a dangerous felony offense. (Doc 8-1, Exh M.) On July 21, 1986, Petitioner was sentenced to a 21-year term of imprisonment on Count I, and a consecutive 18-year term of imprisonment on Count II. (Doc. 8-1, Exh. P, Q.)

Petitioner, through counsel, timely filed a Notice of Appeal in the Arizona Court of Appeals ("Appellate Court"). (Doc. 8-1 at 120, Exh. R.) On or about December 24, 1986, appellate counsel filed an opening brief. (Doc. 8-1, Exh. R.) In a memorandum decision filed on May 14, 1987, the Appellate Court affirmed Petitioner's convictions and sentences. (Doc. 8-1, Exh. T.)[1]

Prior to the Appellate Court's decision, on April 15, 1987, Petitioner filed a Petition for Post-Conviction Relief in the Superior Court. (Doc. 8-1, Exh. U, W.)[2] Petitioner was appointed counsel (Doc. 8-1, Exh. Z; Doc. 8-2, Exh. AA), and an evidentiary hearing was held on the petition (Doc. 8-2, EE, FF). Following the hearing, on September 25, 1987, the Superior Court denied post-conviction relief, finding that Petitioner was not deprived of the effective assistance of trial counsel. (Doc. 8-2, Exh. FF.) Petitioner, through counsel, filed a motion for rehearing (Doc. 8-2, Exh. GG) which the Superior Court denied on October 20, 1987 (Doc. 8-2, Exh. II). Petitioner sought review on November 12, 1987, and in a memorandum decision filed on April 5, 1988, the Appellate Court granted review but affirmed the Superior Court's decision. (Doc. 8-2, Exh. KK; Doc. 8-3, Exh. OOO.)[3]

On October 16, 1990, Petitioner, proceeding pro se, filed a second Petition for Post-Conviction Relief in the Superior Court (Doc. 8-2, Exh. LL, OO.)[4] Finding that no material issue of fact or law existed which would entitle him to relief, the Superior Court dismissed the petition on June 10, 1991. (Doc. 8-2, Exh. WW.) Petitioner filed a Motion for Reconsideration (Doc. 8-2, Exh. XX) which was summarily denied on August 14, 1991 (Doc. 8-2, Exh. ZZ). Petitioner then appealed the decision on August 27, 1991. (Doc. 8-3, Exh. AAA.) In a memorandum decision filed on May 14, 1992, the Appellate Court granted review but denied relief. (Doc. 8-3, Exh. BBB.) On June 19, 1992, Petitioner sought review by the Arizona Supreme Court. (Doc. 8-3, Exh. CCC; Doc. 8-3 at 92, Exh. QQQ.) The Petition for Review was denied on October 23, 1992. (Doc. 8-3 at 92, Exh. QQQ.)

On September 13, 2012, Petitioner, proceeding pro se, filed a Notice and Petition for Post-Conviction Relief in the Superior Court. (Doc. 8-3, Exh. EEE, FFF.) In a minute entry dated October 12, 2012, the Superior Court dismissed the Notice of Post-Conviction Relief. (Doc. 8-3, Exh. HHH, KKK.) Petitioner did not seek review of that decision. (Doc. 1 at 5.)

Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 29, 2012. (Doc. 1.) Respondents filed a Limited Answer (Doc. 8), to which Petitioner filed a Reply (Doc. 9).

DISCUSSION

In his Petition for Writ of Habeas Corpus, Petitioner raises one ground for relief. In Ground One, Petitioner argues that he received ineffective assistance of counsel; but for trial counsel's misinformation concerning the possible sentence if convicted by a jury, he would not have rejected a plea offer and proceeded to trial. In response, Respondents contend that Petitioner's habeas petition is time-barred. Respondents alternatively argue that Petitioner did not exhaust his state court remedies and his claim is procedurally barred. For the reasons that follow, the Court finds that the habeas petition is barred by the statute of limitations, and will therefore recommend that it be denied on that basis.

I. Legal Standard

The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a State court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Such petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").[5] 28 U.S.C. § 2244. The AEDPA imposes a statute of limitations on federal ...


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