United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, Magistrate Judge.
Petitioner Robert LaRue Brown, Jr. has filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, asserting five grounds for relief. (Doc. 1.) In their answer, Respondents assert 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 Grounds Two and Three are not cognizable on federal habeas corpus review, and that federal habeas corpus review of Grounds Two, Three, and Five is procedurally barred. Petitioner has filed a reply. (Doc. 12.) For the reasons below, the Court finds the Petition untimely, recommends that the Petition be dismissed, and does not consider Respondents' alternative arguments.
I. Factual and Procedural Background
A. Charges, Plea, and Sentencing
On January 23, 2003, Petitioner was indicted in the Mojave County Superior Court on second degree murder, a class one felony (Count One), and theft of means of transportation, a class 3 felony (Count Two). (Doc. 11, Ex. A.) On March 31, 2003, Petitioner entered a stipulated guilty plea. (Doc. 11, Ex. F.) The plea agreement provided that Petitioner would plead guilty to manslaughter and theft of means of transportation. ( Id. at 1-2.) On March 31, 2003, the trial court accepted the guilty plea, concluding that Petitioner's plea was "knowing, intelligent, and voluntary." (Doc. 11, Ex. G.)
Before sentencing, the trial court received letters from Petitioner requesting to withdraw from the guilty plea. (Doc. 11, Exs, H, I.) The trial court forwarded the letters to Petitioner's counsel. ( Id. ) On June 16, 2003, defense counsel moved to withdraw due to a conflict of interest. (Doc. 11, Ex. J.) The trial court granted the motion, and later appointed Mark A. Sippel to represent Petitioner in further proceedings. (Doc. 11, Exs. K, L.)
On August 1, 2003, defense counsel requested a diagnostic evaluation and mental examination pursuant to Arizona Rule of Criminal Procedure 26.5, and the trial court granted the request. (Doc. 11, Exs M, N.) The Mohave Mental Health Rule 26.5 Psychological Evaluation (Rule 26.5 report) was submitted to the trial court before sentencing. (Doc. 11, Ex. FF, at 3-4.) Defense counsel also submitted a mitigation report completed by an investigator. (Doc. 11, Ex. O.)
On October 24, 2003, the trial court held an aggravation and mitigation hearing. (Doc. 11, Ex. FF.) The trial court stated that it had read the presentence investigation report, the letters submitted by interested parties, the "Rule 26.5 diagnostic evaluation from Mohave Mental Health, " and the mitigation report. ( Id. at 4-5.) After considering arguments from counsel and testimony from the victim's family members, the trial court imposed a "slightly aggravated" four-year term of imprisonment on the theft of means of transportation conviction, and a concurrent, aggravated twenty-one-year term of imprisonment on the manslaughter conviction. ( Id. at 27-30; Doc. 11, Ex. Q.)
B. Rule 32 "Of-Right" Proceeding
On October 24, 2003, Petitioner filed a notice of post-conviction relief in the trial court to commence an "of-right" proceeding under Arizona Rule of Criminal Procedure 32. (Doc. 11, Ex. R.) The trial court appointed counsel. (Doc. 11, Ex. S.) Counsel filed a petition for post-conviction relief arguing that trial counsel was ineffective at sentencing, the trial court improperly considered aggravating factors, and Petitioner's sentence violated Blakely v. Washington, 542 U.S. 296 (2004), because the trial court, rather than a jury, determined the aggravating factors. (Doc. 11, Ex. U at 3.) Petitioner submitted his mental health records from his incarceration at the Los Angeles County Jail, where he was held upon his arrest, and from the Arizona Department of Corrections as exhibits to his petition. (Doc. 11, Ex. U - exhibits A and B.) On January 10, 2005, the trial court concluded that Petitioner failed to present any colorable claims and denied post-conviction relief. (Doc. 11, Ex. X.)
After receiving an extension of time, on March 1, 2005, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 11, Ex. Z.) Petitioner raised the same claims he had presented in his petition for post-conviction relief. ( Compare Doc. 11, Ex. U with Doc. 11, Ex. Z.) On March 2, 2006, the appellate court denied review. (Doc. 11, Ex. BB.) Petitioner, through counsel, filed a petition for review in the Arizona Supreme Court, raising the same issues presented in the petition for review filed in the Arizona Court of Appeals. ( Compare Doc. 11, Ex. Z with Doc. 11, Ex. BB.) On September 27, 2006, the Arizona Supreme Court summarily denied review. (Doc. 11, Ex. CC.) On October 3, 2006, counsel moved to withdraw, and the trial court granted her request. (Doc. 11, Ex. DD.)
C. Petition for Writ of Habeas Corpus
On November 25, 2014, Petitioner filed the pending Petition for Writ of Habeas Corpus. (Doc. 1.) Petitioner raises the following five grounds for relief: (1) trial counsel was ineffective at sentencing for failing to investigate and present mental health mitigation evidence and for failing to provide evidence of Petitioner's mental health to the Rule 26.5 evaluator (Ground One); (2) the trial court erroneously considered aggravating factors when sentencing Petitioner in violation of the Fifth and Fourteenth Amendments (Ground Two); (3) the trial court erred in finding that the murder was cruel, heinous, or depraved pursuant to Ariz. Rev. Stat. § 13-702(C)(5), in violation of the Fifth and Fourteenth Amendments (Ground Three); (4) the trial court violated the Sixth and Fourteenth Amendments and the Blakely decision because the trial court, not a jury, determined the aggravating factors (Ground Four); and (5) counsel for Petitioner's Rule 32 of-right proceeding was ineffective for failing to request to withdraw the plea agreement (Ground Five). (Doc. 1 at 6-12.) As set forth below, the Court finds the Petition untimely and recommends that it be dismissed on that basis.
II. Statute of Limitations
A. Commencement of the Limitations Period
The AEDPA provides a one-year statute of limitations for state prisoners to file petitions for writ of habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). The limitations period generally commences on "the date on which the 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). Therefore, to assess the timeliness of the Petition, the Court determines the date on which Petitioner's judgment of conviction became "final by the conclusion of direct review." 28 U.S.C. § 2244(d)(1)(A). By pleading guilty, Petitioner was precluded from pursuing a direct appeal in the Arizona Court of Appeals. See Ariz. Rev. Stat. §13-4033(B). Rather, Petitioner could seek review of his conviction and sentence in an "of-right" proceeding pursuant to Rule 32, which is the functional ...