Gilardi v. Ryan

          REPORT AND RECOMMENDATION

          Bernardo P. Velasco United States Magistrate Judge.

         Pending before the Court is Petitioner Andrew Paul Gilardi's Pro Se Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty). (Doc. 1). Respondents filed a Limited Answer to Petition for Writ of Habeas Corpus (Doc. 7), and Petitioner filed a Reply (Doc. 11). This matter was referred to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation pursuant to Rules 71.2 and 72.2 of the Local Rules of Civil Procedure. (Doc. 2). For the reasons stated herein, the Magistrate Judge recommends that the District Court: (1) find that Petitioner's claims pertaining to his original sentence are untimely; (2) find that Petitioner's probation revocation claims are non-meritorious; and (3) deny the §2254 Habeas Petition.

         I. FACTUAL AND PROCEDURAL HISTORY

         On June 13, 2010, Amber Duke ("Ms. Duke") ended her eight-year relationship with Andrew Paul Gilardi. (Exh. B, Doc. 7-1 at 12).^[1]Ms. Duke filed for an Order of Protection on July 27, 2010, and Petitioner received service on August 11, 2010. Id. After the Order of Protection expired, Ms. Duke filed for another Order of Protection, which was served on September 30, 2011. Id.

         Petitioner violated the Order of Protection and continued to contact Ms. Duke and her family members between June 14, 2010 and October 20, 2011. Id. For instance, he contacted Ms. Duke's friends and family electronically, and posted a photo-shopped picture online of someone slitting Ms. Duke's throat and another of Ms. Duke lying headless without arms. Id. In addition to these online posts, Petitioner also posted music videos relating to murdering loved ones on Facebook and accessed Ms. Duke's email without permission. Id.

         Petitioner attempted to make physical contact with Ms. Duke on multiple occasions as well. He appeared at the home of one of her friends and also followed Ms. Duke home from work. Id. Due to the repeated violations, on October 20, 2011 an arrest warrant was issued for the Petitioner. Id.

         a. Plea Agreement and Sentencing

         Petitioner was charged with nineteen counts, which included seventeen counts based on his contact with Ms. Duke and her parents, and two counts of interference with judicial proceedings. (Exh. D, Doc. 7-1 at 41). Pursuant to a plea agreement, Petitioner pled guilty to one count of stalking, a class three felony; and one count of harassment, a class one misdemeanor. (Exh. A, Doc. 7-1 at 3).

         On April 19, 2012, Petitioner was given five years of probation on each count, to run concurrently. (Exh. A, Doc. 7-1 at 3). As part of his probation, Petitioner was also required to serve nine months of incarceration in the Pima County Jail. Id. Petitioner did not directly appeal, or file a notice for post-conviction relief within 90 days of this sentence.

         On October 13, 2014, after Petitioner admitted to violating some of the terms of his probation, the state court revoked Petitioner's probation and sentenced him to what the court referred to as an "aggravated term" of seven years, with two hundred ninety-five (295) days credit for time served. (Doc. 11 at 18). Id. The state court found that "the affect the crime had upon the victim and the continuing threat to anyone the defendant is in a relationship with" were aggravating circumstances. Id.

         b. PCR Petition

         Petitioner filed a Notice of Post-Conviction Relief on October 28, 2014. (Exh. A, Doc. 7-1 at 3). Petitioner was appointed counsel. Id. On March 15, 2015, counsel filed a Notice of Review, finding no colorable claims and asking that Petitioner be permitted to proceed pro se. Id. The state court ordered Petitioner to file his Pro Se Petition for Post-Conviction Relief ("PCR Petition") no later than December 31, 2016. Id. Petitioner claims that he mailed his PCR Petition on December 28, 2016 (Exh. D, Doc. 7-1 at 28), however, the Clerk of Court filed it on January 9, 2017. (Doc. 1-1 at 11-12; Exh. A, Doc. 7-1 at 3). The PCR Petition alleged the following:

1) The Arizona statutes under which Petitioner pled guilty and was convicted in his original sentence were unconstitutional;

2) The sentence imposed at the original 2012 sentencing and the 2014 disposition were not authorized by law, and the Court did not notify Petitioner of its intent to impose an aggravated term at the time of the 2014 disposition hearing; and

3) Ineffective assistance of counsel, both at the time of 2012 sentencing and at the time of the 2014 probation revocation hearing.

(Exh. A. Doc. 7-1 at 3-4).

         The state court found that the PCR Petition was not timely filed and dismissed it on March 13, 2017, adding that even if it had been filed on time, the state court would have dismissed the PCR Petition because it attempted to raise claims that were waived by the acceptance of a plea agreement or barred. Id. at 4.

         On October 2, 2014, Petitioner petitioned for review to the Arizona Court of Appeals. (Exh. D, Doc. 7-1 at 21-38). While the petition for review was pending, on November 30, 2017, Petitioner filed the instant §2254 Habeas Petition ("§ 2254 Petition"). (Doc. 1).

         On February 2, 2018, the appellate court denied relief. State v. Gilardi, 2018 WL 776018 *1 (Ariz. App. Feb. 8, 2018). First, it found that to the extent that Petitioner's PCR Petition challenged his original sentence, it was untimely because he failed "to seek post-conviction relief within ninety days of his sentence." Id. at ¶ 6. In addition, the only arguable exception to this deadline was raised in Petitioner's reply, and under state law the trial court was within its discretion to choose not to address it. Id. As to his probation revocation claims, the appellate court agreed with Petitioner that his date of filing the PCR Petition was the date in which he delivered it to prison authorities on December 28, 2016. Id. at ¶ 5. However, the appellate court declined to address this issue because regardless of untimeliness, Petitioner lacked any colorable claim for post-conviction relief. Id.

         c. Instant § 2254 Habeas Petition Petitioner's §2254

         Petition raises seven grounds for relief:^[2]

• GROUND 1 - Challenging the constitutionality of the statue under which he was originally sentenced. (Doc. 1-1 at 13- 14).

• GROUND 2 - Arguing that his right to appeal was not waived when he pled guilty during his original sentence. (Doc. 1-1 at 12).

• GROUND 3 - Stating the state court lacked jurisdiction to sentence him in his original sentence. (Doc. 1-1 at 13).

• GROUND 4 - Claiming trial counsel rendered ineffective assistance for failing to conduct a mental health evaluation during his original sentencing proceedings. (Doc. 1-1 at 14, 19).

• GROUND 5 - Contending that his original nine-month jail sentence was a concurrent sentence for both offenses, and constituted double jeopardy. (Doc. 1-1 at 17).

• GROUND 6 - Arguing the trial court abused its discretion during his probation revocation because the court used aggravating factors not present at the time of his original sentencing to revoke probation. (Doc. 1-1 at 18).

• GROUND 7 - Claiming ineffective assistance of counsel during Petitioner's probation revocation hearing because counsel failed to notify Petitioner of the state court's intent to aggravate his sentence and for not introducing ...