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Awad v. Ryan

United States District Court, D. Arizona

April 23, 2018

Matthew Mounir Awad, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          MICHELLE H. BUMS UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT COURT:

         On June 9, 2017, Petitioner Matthew Mounir Awad, who is confined in the Arizona State Prison Complex, through counsel filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) On August 14, 2017, through counsel, Petitioner filed an Amended Petition for Writ of Habeas Corpus (hereinafter “habeas petition”). (Doc. 11.) Respondents filed an Answer (Doc. 12), and Petitioner has filed a Reply. (Doc. 16.)

         BACKGROUND[1]

         On March 9, 2007, Petitioner was indicted by an Arizona state grand jury on one count of kidnapping (“Count 1"), one count of attempted sexual assault (“Count 4"), and three counts of sexual assault (“Counts 2, 3, and 5") in Case No. CR 2007-113620. (Exh. A.) On September 15, 2008, Petitioner was indicted on one count of conspiracy to commit first degree murder in Case No. CR 2008-155819. (Exh. B.) In the 2008 matter, the State offered a plea agreement in which Petitioner would plead guilty to attempted first degree murder in exchange for a stipulated, aggravated sentence of 10-years' imprisonment. (Exh. D.) In the 2007 matter, the State offered a plea agreement in which Petitioner would plead guilty to Counts 2, 3 and 4 in exchange for dismissal of Counts 1 and 5. (Doc. 11-1.) The terms if this agreement additionally provided that, following the completion of his 10-year sentence in the 2008 matter, he would receive an aggravated sentence on Count 2 of 11-years' imprisonment, followed by lifetime probation on Counts 3 and 4. (Doc. 11-1.) Petitioner agreed to the terms set forth in the plea agreements and, thereafter, the court accepted the pleas. (Doc. 11-1 at 8-23.) Petitioner was sentenced on August 14, 2009 pursuant to the terms of the plea agreements. (Doc.11-1 at 35-51.)

         On October 14, 2009, Petitioner filed a notice of post-conviction relief. (Doc. 11-1 at 58-64.) Petitioner was subsequently appointed counsel, and on March 19, 2010, counsel filed a notice of completion of post-conviction review, stating that he was “unable to find any claims for relief to raise in post-conviction relief proceedings.” (Doc. 11-1 at 70-71.) The trial court thereafter granted Petitioner until May 13, 2010, to file his own pro se notice of post-conviction relief; however, Petitioner failed to do so, and on December 20, 2010, the court dismissed the Rule 32 proceedings. (Doc. 11-1 at 74.) Petitioner did not file a petition for review to the Arizona Court of Appeals. (Doc. 11 at 7.)

         Petitioner initiated habeas corpus proceedings on June 9, 2017. (Docs. 1, 11.) Petitioner raises six grounds for relief. In Ground One, Petitioner alleges that his guilty plea was not knowing, intelligent, and voluntary. In Ground Two, Petitioner asserts ineffective assistance of counsel resulting in deficient plea advice. In Ground Three, Petitioner alleges his sentence was based on aggravating factors not found beyond a reasonable doubt. In Ground Four, Petitioner asserts ineffective assistance of counsel resulting from trial counsel's failure to inform Petitioner of his rights regarding the determination of aggravating factors for sentencing. In Ground Five, Petitioner alleges a violation of due process of law resulting from improperly sentencing Petitioner to an aggravated sentence and failing to inform Petitioner of his rights regarding aggravating factors. In Ground Six, Petitioner asserts his of-right post-conviction proceedings did not comply with Anders v. California.

         DISCUSSION

         In their Answer, Respondents contend that Petitioner's habeas petition is untimely and, as such, must be denied and dismissed.

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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