United States District Court, D. Arizona
ROSLYN O. SILVER, Senior District Judge.
Before the Court is Petitioner Peter Sharma's objection to the report and recommendation of the Magistrate Judge. (Doc. 15, Doc. 13). For the following reasons, the Court adopts in part and rejects in part the Magistrate Judge's report and recommendation.
On July 19, 2005, Petitioner was charged with one count of Fraudulent Schemes and Artifices, a class two felony (Count 1), and three counts of Forgery, a class four felony (Counts 2, 3, and 4). (Doc. 11, Exh. A). On February 17, 2006, Petitioner entered into a plea agreement. (Doc. 11, Exhs. FF, GG and HH). Pursuant to the agreement, Petitioner pled guilty to Count 1; was placed on five years' supervised probation to begin after his release from prison in a different matter; and was ordered to pay restitution. (Doc. 11, Exh. FF). As a result of his plea, Counts 2, 3, 4, and various prior conviction and release-status allegations were dismissed. (Doc. 11, Exh. FF). The sentence was entered on April 28, 2006. (Doc. 11, Exhs. KK, LL and MM). But the restitution amount was not finalized until almost two years later, on March 6, 2008. (Doc. 11, Exh. EEE).
In pleading guilty, Petitioner waived his right to a direct appeal. See A.R.S. § 13-4033(B). Petitioner, however, retained his right to seek review in an "of right proceeding" under Rule 32 of the Arizona Rules of Criminal Procedure. Ariz.R.Crim.P. 32.1, 32.4. On May 16, 2006, Petitioner filed a Notice of Post-Conviction Relief. (Doc. 11, Exh. NN). Petitioner's appointed counsel then filed a notice that he had reviewed the record and could find no viable claims. (Doc. 11, Exh. TT). The trial court granted Petitioner 45 days to file a pro se petition (Doc. 11, Exh. UU) but dismissed the post-conviction proceedings on January 4, 2007, because Petitioner failed to file a petition. (Doc. 11, Exh. XX).
Petitioner filed two more Notices of Post-Conviction Relief. (Doc. 11, Exh. YY, AAA). Again, Petitioner's counsel filed a notice stating he had reviewed the record and could find no meritorious claims to raise in a post-conviction petition. (Doc. 11, Exh. FFF). Counsel also requested an extension of time to allow Petitioner to file a pro se petition, which the trial court granted. (Doc. 11, Exhs. FFF, GGG). On August 4, 2008, Petitioner filed a pro se Petition for Post-Conviction Relief, arguing he was denied a restitution hearing and claiming newly-discovered evidence. (Doc. 11, Exh. KKK). The trial court dismissed the petition on November 12, 2008, finding Petitioner's claims time-barred pursuant to Ariz.R.Crim.P. 32.2(a)(3) and, alternatively, because they lacked merit. (Doc. 11, Exh. NNN).
On May 28, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (Doc. 1 of CV 09-1139-PHX-ROS (LOA)). Petitioner subsequently filed a Second Amended Petition, arguing his Sixth Amendment right to confrontation was violated and his plea was coerced. (Doc. 8 of CV 09-1139-PHX-ROS (LOA)). The Magistrate Judge issued a Report and Recommendation, recommending the petition be denied as untimely and procedurally defaulted. (Doc. 15 of CV 09-1139-PHX-ROS (LOA)). The District Court adopted the Report and Recommendation and denied the petition. (Doc. 16 of CV 09-1139-PHX-ROS (LOA)).
On November 18, 2010, Petitioner's probation officer filed a Petition to Revoke Probation based on Petitioner's alleged failure to pay restitution as ordered by "Special White Collar Conditions of Probation." (Doc. 11, Exh. UUU). The trial court found Petitioner violated the conditions of his probation. (Doc. 11, Exh. BBBB at 61-62, CCCC). A disposition hearing was held on February 4, 2011, at which the trial court revoked Petitioner's probation and sentenced him to the minimum prison term of four years in the Arizona Department of Corrections. (Doc. 11, Exh. FFFF, GGGG). Petitioner appealed, but the court of appeals dismissed the appeal. (Doc. 11, Exh. HHHH, KKKK).
On November 27, 2012, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (Doc. 1). Petitioner raised three grounds for relief in the Petition. In Ground One, Petitioner alleges his trial counsel provided ineffective assistance of counsel by improperly advising Petitioner to enter into a plea agreement. In Ground Two, Petitioner alleges prosecutors violated the Due Process Clause and committed misconduct when they failed to turn over exculpatory evidence. In Ground Three, Petitioner alleges his plea agreement was an invalid contract of adhesion.
In the Magistrate Judge's report and recommendation, he frames the issues as pertaining to the most recent state court judgment revoking Petitioner's probation and sentencing him to four years in prison. The Magistrate Judge calls it an "intervening" judgment providing new grounds for challenge, but recommends denial based on failure to comply with the statute of limitations for filing a petition. (Doc. 13). Petitioner, however, characterized his Petition as based on the earlier conviction and process that lead to his guilty plea. Significantly, Petitioner does challenge any aspect of his probation revocation. (Doc. 15).
I. Standard of Review for Report and Recommendation
A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). Where any party has filed timely objections to the magistrate judge's report and recommendations, the district court's review of the part objected to is to be de novo. Id . See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). "Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Mortensen v. BAC Home Loans Servicing, LP, 1:10-CV-00298-EJL, 2013 WL 943085 (D. Idaho Mar. 8, 2013). Petitioner's ...