Sanchez v. Agnew

          TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.

         Petitioner Jesus Sanchez Sanchez (“Petitioner”), who is confined in the Arizona State Prison Complex in San Luis, Arizona, filed a pro se federal habeas petition pursuant to 28 U.S.C. § 2254 (“Petition”) on February 13, 2018 (Doc. 1), challenging his conviction entered by the Maricopa County Superior Court. The Court ordered that Respondents answer the Petition (Doc. 8). Respondents filed a Limited Answer (Doc. 12), and Petitioner filed a Reply (Doc. 13). This matter is ripe for decision. For the reasons set forth below, the undersigned Magistrate Judge recommends that this Court deny and dismiss the Petition with prejudice as untimely filed pursuant to 28 U.S.C. § 2244(d)(1)(A) and deny a certificate of appealability.

         I. BACKGROUND

         A. Convictions and Sentences

         Petitioner was convicted pursuant to a plea agreement in Maricopa County Superior Court No. CR2012-117546-002 (Doc. 12-1 at 20-37). Petitioner plead guilty to (1) conspiracy to sell or transfer dangerous drugs, a class 2 felony (Count 1, as amended); and (2) possession of dangerous drugs for sale (methamphetamine), a class 2 felony (Count 7) (Id.).

         On January 15, 2013, Petitioner was sentenced to a ten year term of imprisonment on count 1 and a five year term of imprisonment on count 7 (Docs. 12-1 at 44-57). The ten year term of imprisonment on count 1 was to be served consecutively to the five year term of imprisonment on count 7 under the terms of the plea agreement (Doc. 12-1 at 21). “For Count 7, Defendant shall be sentenced to the minimum sentence of 5 years Department of Corrections and pay a fine of $90, 000 (inclusive of surcharges). For Count 1, Defendant shall be sentenced to the Department of Corrections for an aggravated term of 10 years, to run consecutively to Count 1” (Id.) Further, as set forth in paragraph 1 of the plea agreement (Doc. 12-1 at 21) and as the sentencing judge went over with Petitioner at the change of plea hearing before Petitioner plead guilty, the sentence on Count 7 was to be served as calendar years or, as Petitioner calls it, “flat time” (Doc. 12-1 at 28; Doc. 1 at 6). When asked by the judge conducting the change of plea proceeding if Petitioner understood that, Petitioner responded, “Yes” (Id.).

         Petitioner was represented by counsel throughout the trial court proceedings (Doc. 12-1 at 20-37, 44-57).

         B. Appeal and PCR Proceedings

         Petitioner did not appeal his conviction and sentence (Doc. 1 at 2), which he could not do, in any event, because he was convicted by plea agreement. See A.R.S. § 13- 4033(B); Summers v. Schriro, 481 F.3d 710, 711-717 (9th Cir. 2007) (concluding that an “‘of right proceeding,' available under Arizona Rule of Criminal Procedure 32 to criminal defendants who plead guilty or no contest, is a form of ‘direct review' within the meaning of 28 U.S.C. § 2244(d)(1)”). See also Doc. 12-2 at 1-2.

         On February 25, 2013, Petitioner filed a PCR Notice (Doc. Doc. 12-2 at 3-7). On December 17, 2013, Petitioner's counsel filed a “Notice of Completion of Post-Conviction Review, ” indicating she could not find any colorable claims to raise in a PCR proceeding (Doc. 12-2 at 8-10). The court gave Petitioner until February 13, 2014, to file a pro per PCR petition (Doc. 12-2 at 11-13). On April 3, 2014, the court dismissed the PCR proceeding because Petitioner did not file a PCR petition (Doc. 12-2 at 19-20).

         In 2017, Petitioner filed additional PCR notices, all of which were dismissed as untimely (and on other, additional grounds) (Docs. 12-2 at 21-84).

         C. Petitioner's Habeas Claims

         Petitioner asserts one ground in his Petition, which was filed with this Court on February 13, 2018 (Doc. 1).^[1] In his Petition, Petitioner names Carla Hacker-Agnew as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises one ground for relief. Petitioner alleges that he was denied the effective assistance of counsel in violation of his Fourth, Sixth, and Fourteenth Amendment rights (Doc. 1 at 6). As facts in support, Petitioner states that “Defendant was sentenced to 15 years in prison by a plea agreement the State agreed to but the ...