United States District Court, D. Arizona
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE.
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.
Convictions and Sentences
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.).
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.).
was represented by counsel throughout the trial court
proceedings (Doc. 12-1 at 20-37, 44-57).
Appeal and PCR Proceedings
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.
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).
2017, Petitioner filed additional PCR notices, all of which
were dismissed as untimely (and on other, additional grounds)
(Docs. 12-2 at 21-84).
Petitioner's Habeas Claims
asserts one ground in his Petition, which was filed with this
Court on February 13, 2018 (Doc. 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 ...