United States District Court, D. Arizona
REPORT AND RECOMMENDATION
DAVID K. DUNCAN, Magistrate Judge.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Signe Jones filed a Petition for Writ of Habeas Corpus on August 8, 2014, challenging his convictions and sentences, pursuant to a plea agreement, for various felonies stemming from the sale of marijuana. Specifically, Jones alleges that he received ineffective assistance of counsel and that evidence should have been suppressed. First, Respondents contend that his ineffective assistance claim was untimely, not exhausted, and subject to an implied procedural bar, and, second, that he waived his evidence suppression argument when he entered a plea of guilty. As described below, the Court recommends that his Petition be denied and dismissed with prejudice.
On December 3, 2010, Jones entered a plea of guilty in Maricopa County Superior Court in two related cases to two counts of conspiracy to commit the sale or transportation of marijuana, one count of illegal control of an enterprise, one count of assisting a criminal street gang, one count of solicitation of an offer to sell or transfer marijuana, one count of misconduct involving weapons, and one count of use of a wire in a drug transaction. (Doc. 11, Exs. M, N, O, P, Q) On December 16, 2010, Jones was sentenced to one ten year sentence to be followed by six concurrent probation terms of three years each. (Doc. 11, Exs. R, S) At his sentencing, Jones signed Notices of Rights of Review after Conviction and Procedure that explained the procedures he needed to follow to exercise his right to post-conviction relief, including the time frames for initiating any such relief. (Doc. 11, Exs. T, U)
On September 12, 2011, Jones filed Notices of Post-Conviction Relief in both cases. (Doc. 11, Exs. V, W) In his Notices, he raised claims of ineffective assistance of counsel and claimed that newly discovered material facts would probably change his sentence. ( Id. at 2, 3) He also acknowledged that the Notices were untimely and claimed it "was due to the [prison] library having poor legal material on top of not being able to access the library." ( Id. ) Without addressing the merits of his claims, the Superior Court appointed Jones counsel who reviewed the file, interviewed trial counsel, and corresponded with Jones before informing the Court that she could not find a tenable issue to submit to the Court. (Doc. 11, Exs. X, Y) Jones then filed a pro per petition and argued that he received ineffective assistance of trial counsel and that United States v. Jones, 132 S.Ct. 945 (2012), was a change in the law that applied to his case. (Doc. 11, Exs. Z, AA, BB, CC, DD) At the conclusion of briefing, the Court found that Jones' claims were untimely and he did not fall within any of the exceptions to the untimeliness requirements. (Doc. 11, Exs. EE, FF, GG, HH, II)
Jones petitioned the Arizona Court of Appeals for review of the Superior Court's denial of his Petition for Post-Conviction Relief arguing only that Jones applied to his case. (Doc. 11, Ex. JJ) On May 6, 2014, the Court of Appeals granted review but found that Jones was not entitled to relief because he "pled guilty and therefore waived all non-jurisdictional defects, including the violation of his constitutional rights." (Doc. 11, Ex. LL at ¶ 5)
On August 8, 2012, Jones filed a Petition for a Writ of Habeas Corpus in this Court. (Doc. 1) He claims that he received ineffective assistance of counsel and that certain evidence should have been suppressed. (Doc. 1 at 6-7) Respondents contend that his ineffective assistance claim cannot be reviewed because it was untimely, was not exhausted, and is now subject to an implied procedural bar. Respondents further contend that when Jones entered a plea of guilty, he waived any arguments about suppression of evidence. (Doc. 11)
The Court Cannot Review Jones' Ineffective Assistance Claim.
Respondents contend that Jones did not timely raise his ineffective assistance of counsel claim in post-conviction relief proceedings and, therefore, he cannot raise it now on habeas review. In his memorandum in support of his reply, Jones argues both that Respondents are estopped from arguing that his claim is untimely and that his claim is timely because it was raised within one year after the U.S. Supreme Court issued its opinion in Jones. (Doc. 15 at 5, 8)
Timeliness Requirement. A state prisoner seeking federal habeas relief from a state court conviction is required to file the petition within one year of "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). The period of limitations is statutorily tolled during the time in which a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending" in the State courts. 28 U.S.C. § 2244(d)(2). If a defendant is convicted pursuant to a guilty plea, then the first post-conviction proceeding is considered a form of direct review and the conviction becomes "final" for purposes of Section 2244(d)(1)(A) when the Rule 32 of-right proceeding concludes. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).") (internal quotation omitted); Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (conviction pursuant to plea agreement is final on expiration of the time for seeking Rule 32 relief).
Here, the Superior Court found that Jones' ineffective assistance claim was untimely. (Doc. 11 at II) Jones was sentenced on December 16, 2010, and so he needed to file his notice of post-conviction relief within 90 days. Ariz. R. Crim. P. 32.4(a). Instead, he waited over nine months. (Doc. 11, Exs. V. W) Accordingly, his post-conviction proceedings on this claim were untimely.
This Court can review Jones' untimely habeas petition if he can demonstrate that he is entitled to equitable tolling by showing both that he pursued his rights diligently and that some extraordinary circumstance prevented him from filing his petition. Holland v. Florida, 560 U.S. 631, 649 (2010). He has done neither. Instead, he seems to argue in his reply memorandum that his ineffective assistance claim is timely because he filed this claim within one year after the Jones case was decided and his counsel only became ineffective after Jones because his counsel should have raised the same arguments as Jones. (Doc. 15) This argument is predicated on Jones' assumption that Jones applies retroactively. (Doc. 15 at 24) However, the only courts that have addressed this argument have all concluded that Jones is not retroactively applicable. United States v. Sykes, 2013 WL 1165245, at *3 (E.D. Va. Mar. 20, 2013); Judkins v. United States, 2013 WL 1130484, at *4 (E.D. Wis. Mar. 18, 2013); Hernandez v. United States, 2013 WL 625752, at *2 (N.D. Tex. Jan. 29, 2013); United States v. Jesus-Nunez, 2013 WL 312387, at *7 (M.D. Pa. Jan. 25, 2013); Reyes-Sotero v. United States, 2012 WL 6681963, at *2 (D. Md. Dec. 21, 2012); United States v. Reyes, 2012 WL 4339070, at *6 (S.D. Cal. Sept. 19, 2012); Garcia v. Bradt, 2012 WL 3027780, at *7 (S.D.N.Y. July 23, 2012). The Court agrees that Jones does not apply retroactively and, therefore, this claim has no merit.
Next, Respondents argue that, even if timely, this Court cannot review Jones' ineffective assistance claim because it was not exhausted and is now subject to ...