United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Bernardo P. Velasco United States Magistrate Judge.
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.
FACTUAL AND PROCEDURAL HISTORY
13, 2010, Amber Duke ("Ms. Duke") ended her
eight-year relationship with Andrew Paul Gilardi. (Exh. B,
Doc. 7-1 at 12).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.
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.
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.
Plea Agreement and Sentencing
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).
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
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.
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
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;
3) Ineffective assistance of counsel, both at the time of
2012 sentencing and at the time of the 2014 probation
(Exh. A. Doc. 7-1 at 3-4).
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.
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).
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.
Instant § 2254 Habeas Petition Petitioner's
raises seven grounds for relief:
• GROUND 1 - Challenging the constitutionality of the
statue under which he was originally sentenced. (Doc. 1-1 at
• 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,
• 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