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Nigro v. Ryan

United States District Court, D. Arizona

February 21, 2018

Ronald J. Nigro, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          BRIDGET S. BADE, UNITED STATES MAGISTRATE JUDGE

         On April 7, 2017, Petitioner Ronald J. Nigro filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents have filed an answer asserting that the petition is untimely, or alternatively, that Petitioner's claims are procedurally barred from federal habeas corpus review. (Doc. 11) Petitioner has not filed a reply in support of petition and the time to do so has passed. (See Doc. 6.) For the reasons below, the Court recommends that the petition be denied as untimely.

         I. Factual and Procedural Background

         A. Guilty Plea and Sentencing

         On December 28, 2012, the State of Arizona charged Petitioner with first-degree burglary, a class two dangerous felony (Count One), and second-degree trafficking in stolen property, a class three felony (Count Five).[1] (Doc. 11, Ex. B.) In July 2013, Petitioner pleaded guilty to Count Five and the State agreed to dismiss Count One. (Doc. 11, Exs. C, D.) On August 22, 2013 the trial court sentenced Petitioner to seven years' imprisonment. (Doc. 11, Ex. E.)

         B. Post-Conviction Proceeding

         On September 18, 2013, Petitioner filed a notice of post-conviction relief in the trial court to commence an “of-right” proceeding under Rule 32 of the Arizona Rules of Criminal Procedure 32.[2] (Doc. 11, Ex. F.) On January 28, 2014, appointed counsel filed a notice advising the court that, after reviewing the record, she could find no colorable claim for relief. (Doc. 11, Exs. G, I.) The court ordered Petitioner to file a pro se petition by March 17, 2014. (Doc. 11, Ex. J.) Petitioner did not file a petition. Therefore, on May 7, 2014, the trial court dismissed the Rule 32 of-right proceeding. (Doc. 11, Ex. K.)

         C. Petition for Writ of Habeas Corpus

         On March 31, 2017, Petitioner filed a petition for writ of habeas corpus in this Court.[3] (Doc. 1.) Petitioner asserts that trial counsel was ineffective during the plea process (Ground One), trial counsel was ineffective for failing to investigate the case and failing to explain the facts to Petitioner (Ground Two), and his rights to “judicial process” were violated because he did not receive “an evidentiary hearing” and was not provided counsel for a “presentence interview.” (Doc. 1 at 6-13.) As set forth below, the Court recommends that the petition be dismissed as untimely.

         II. Statute of Limitations

         A. Commencement of the Limitations Period

         The AEDPA provides a one-year statute of limitations for a state prisoner to file a petition 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).[4] Therefore, to assess the timeliness of the petition, the Court determines 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 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 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).

         Petitioner pleaded guilty and was later sentenced on August 22, 2013. (Doc. 11, Exs. D, E.) On September 18, 2013, he commenced a Rule 32 of-right proceeding by filing a notice of post-conviction relief. (Doc. 11, Ex. F.) On May 7, 2014, the trial court dismissed the Rule 32 proceeding based on Petitioner's failure to file a petition. (Doc. 11, Ex. K.) Petitioner did not seek review in the Arizona Court of Appeals. (See Docs. 1, 11.) Therefore, Petitioner's conviction became final on June 6, 2014, when the time for filing a petition for review in the Arizona Court of Appeals expired. See Ariz. R. Crim. P. 32.9(c); see Summers, 481 F.3d at 711; Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (for purposes of § 2244(d)(1)(A) direct review is final upon conclusion of direct review or the time to seek such review). Thus, the one-year limitations period commenced the next day, June 7, 2014, and expired one year later, on June 7, 2015.[5] See Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir. 2001) (the AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed.R.Civ.P. 6(a)). Petitioner did not file his petition until March 31, 2017. Therefore, it is untimely unless statutory or equitable tolling applies.

         B. ...


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