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Leffler v. Ryan

United States District Court, Ninth Circuit

October 17, 2013

George Allen Leffler, Petitioner,
v.
Charles L. Ryan, et. al, Respondents.

REPORT AND RECOMMENDATION

BRIDGET S. BADE, Magistrate Judge.

Pursuant to 28 U.S.C. § 2254, Petitioner George Allen Leffler (Petitioner) has filed a pro se Petition for Writ of Habeas Corpus asserting one claim of ineffective assistance of trial counsel. (Doc. 1.) Respondents contend that the Petition should be dismissed as untimely under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which provides the statute of limitations applicable to state prisoners seeking federal habeas corpus relief. (Doc. 11.) Alternatively, Respondents argue that because Petitioner did not properly present his claim to the Arizona Court of Appeals, and he cannot return to state court to do so now, federal habeas corpus review is procedurally barred. (Doc. 11.) In his reply, Petitioner opposes Respondents' assertions and argues that he is entitled to relief on the merits of his claim. (Doc. 12.) For the reasons set forth below, the Court finds the Petition untimely under the AEDPA and will not reach Respondents' alternative arguments.

I. Factual and Procedural Background

A. Indictment, Plea, and Sentencing

In June 2005, Petitioner was indicted by a grand jury in the Navajo County Superior Court (superior court), on two counts of sexual conduct with a minor (Counts 1 and 3), one count of child molestation (Count 2), and one count of continuous sexual abuse of a child (Count 4). (Ex. A.)[1] On July 17, 2007, Petitioner pleaded no contest to one count of sexual conduct with a minor, one count of attempted molestation of a child, and one count of attempted sexual contact with a minor. (Ex. B.) On September 19, 2007, the superior court sentenced Petitioner to a "flat term" of twenty years' imprisonment on Count 1, as amended by the plea agreement (Ex. C), and to lifetime probation on Counts 2 and 3, as amended by the plea agreement. (Ex. D.)

B. Rule 32 Of-Right Proceeding

Because he pleaded guilty, Petitioner's only avenue of direct review was an of right" proceeding under Arizona Rule of Criminal Procedure 32. See Ariz. Rev. Stat. § 13-4033(B) ("[I]n noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement...."); Ariz. R. Crim. P. 32.1 ("[a]ny person who pled guilty or no contest... shall have the right to file a post-conviction relief proceeding known as a Rule 32 of-right proceeding"). On November 13, 2007, Petitioner filed a notice and petition of post-conviction relief pursuant to Rule 32.[2] (Ex. E.)

During an August 17, 2010 evidentiary hearing to consider the merits of the petition, Petitioner moved to withdraw his petition and the superior court granted the motion. (Ex. P.) On September 3, 2010, Petitioner filed a "Motion to Withdraw" his previous "request to withdraw his rule 32" petition. (Ex. S.) The superior court summarily denied Petitioner's motion on October 13, 2010. (Ex. T.) Petitioner filed a request for reconsideration on November 17, 2010 (Ex. U), which the court denied on December 7, 2010. (Ex. V.)

On January 10, 2011, Petitioner filed a petition for review in the Arizona Court of Appeals (court of appeals), seeking review of "his claims that the sentence he was given by the trial court is unenforceable." (Ex. W.) Petitioner also asserted that during the August 17, 2010 evidentiary hearing, the prosecutor threatened to withdraw the plea agreement unless Petitioner withdrew his Rule 32 of-right petition. (Ex. W.) On January 26, 2011, the court of appeals dismissed Petitioner's appeal pursuant to Rule 32.9(c) because the superior court had not entered any final order in the post-conviction relief proceedings. (Ex. X.)

On June 25, 2012, Petitioner filed a "petition for status update" in the superior court asserting that his "motion to withdraw his withdrawal, " which he filed on September 3, 2010, "ha[d] not received a response."[3] (Ex. Y.) On July 23, 2012, the superior court issued an order informing Petitioner that it had ruled on his "previous request" on December 7, 2010, which is the date the superior court denied Petitioner's motion for reconsideration of the order denying his "motion to withdraw his withdrawal." (Ex. Z.) On December 17, 2012, Petitioner filed the pending Petition in this Court asserting one claim of ineffective assistance of trial counsel.[4] (Doc. 1. at 6.)

II. Statute of Limitations

The AEDPA provides a one-year statute of limitations for state prisoners to file a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). That period generally commences on "the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Respondents contend that Petitioner's pending Petition is untimely because it was not filed within one year of the date on which his challenged convictions "became final by the conclusion of direct review, " 28 U.S.C. § 2244(d)(1), and because he has not established a basis for tolling the limitations period. As set forth below, the Court recommends that the Petition be dismissed as untimely.

A. Commencement of the Limitations Period

To assess the timeliness of the pending Petition the Court must first determine the date on which Petitioner's conviction became "final by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). By pleading no contest, Petitioner waived his right to a direct appeal under Arizona law. See Ariz. Rev. Stat. §13-4033(B). Petitioner, however, retained the right to seek review in an "of-right" proceeding pursuant to Rule 32, which is the functional equivalent of a direct appeal. See Ariz. R. Crim. P. 32.1 and 32.4.; Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007) (noting that Arizona courts consider Rule 32 of-right proceedings a form of direct review). Because Petitioner pleaded no contest, his conviction became final upon "the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or [upon] the expiration of the time for ...


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