United States District Court, D. Arizona
Ronald J. Nigro, Petitioner,
Charles L Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
BRIDGET S. BADE, UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural Background
Guilty Plea and Sentencing
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). (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.)
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. (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.)
Petition for Writ of Habeas Corpus
March 31, 2017, Petitioner filed a petition for writ of
habeas corpus in this Court. (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.
Statute of Limitations
Commencement of the Limitations Period
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). 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).
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. 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.