United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE
HONORABLE SUSAN R. BOLTON, SENIOR U.S. DISTRICT JUDGE:
Adolfo
Oros filed a Petition for Writ of Habeas Corpus
(“Petition”) challenging his convictions pursuant
to a plea agreement in Pinal County Superior Court. His
habeas petition alleges ineffective assistance of counsel and
prosecutorial misconduct. Respondents contend that his
petition is untimely and also barred because he pleaded
guilty. As explained below, the Court recommends that
Oros' Petition be denied and dismissed with prejudice.
Background
On
August 24, 2015, Pinal County Superior Court sentenced Oros
to an aggravated sentence of 4.5 years in prison for one
count of burglary in the second degree and a consecutive term
of seven years supervised probation for one count of
kidnapping. (Doc. 11, Exs. E, F) At the conclusion of his
sentencing, Oros received a “Notice of Rights of Review
After Conviction and Procedure” which detailed his
right to post-conviction relief, including the timeframe for
initiating such relief. (Doc. 11, Ex. E at 15, Ex. G) Oros
signed this Notice to acknowledge his receipt. (Id.)
On
March 2, 2016, Oros filed a Motion for Clarification asking
why he received an aggravated sentence. (Doc. 11, Ex. H) The
Superior Court subsequently filed a Notice explaining that
the imposed sentence was consistent with the plea agreement
stipulations. (Doc. 11, Ex. I) Oros then filed a Motion for
Correction of Sentence, arguing that the Court should not
have imposed an aggravated sentence. (Doc.11, Ex. J) In
October 2016, the Court denied his motion. (Doc. 11, Ex. K)
On
January 5, 2017, Oros filed a Notice of Post-Conviction
Relief (“PCR”). (Doc. 11, Ex. L) The Pinal County
Superior Court noted that this was not an “of
right” proceeding because Oros had not filed the Notice
within 90 days after the entry of judgement, and appointed
Oros counsel. (Doc. 11, Ex. M) Oros' counsel filed a
Notice of Completion of Post-Conviction Review on October 23,
2017 because he had concluded that there were no colorable
claims to raise on Oros' behalf. (Doc. 11, Ex. N) Counsel
also requested that Oros be given additional time to file a
pro per post-conviction relief petition.
(Id.) The Court granted the additional time to Oros
and set January 29, 2018, as the deadline to file a pro
per PCR petition. (Doc. 11, Ex. O) Oros failed to file
any pro per petition and, on May 31, 2018, the
Superior Court dismissed his Notice of Post-Conviction
Relief. (Doc. 11, Ex. P)
On
January 12, 2018, Oros filed his Petition with this Court.
(Doc. 1) His Petition argues that his Sixth Amendment rights
were violated by ineffective assistance of counsel and that
his Fourteenth Amendment rights were violated by
prosecutorial misconduct. (Id. at 6-7) Respondents
contend that his Petition is untimely, that he is not
entitled to equitable tolling, and also that his claim is
barred by his guilty plea. (Doc. 11)
Oros'
Petition is Untimely.
A state
prisoner seeking federal habeas relief from a state court
conviction is required to file the petition within one year
of “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The period of limitations is statutorily tolled during the
time in which a “properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending” in the
State courts. 28 U.S.C. § 2244(d)(2). If a defendant is
convicted pursuant to a guilty plea, then the first
post-conviction proceeding is considered a form of direct
review and the conviction becomes “final” for
purposes of Section 2244(d)(1)(A) when the Rule 32 of-right
proceeding concludes. Pace v. DiGuglielmo, 544 U.S.
408, 414 (2005) (“When a postconviction petition is
untimely under state law, that is the end of the matter for
purposes of § 2244(d)(2).”) (internal quotation
omitted); Summers v. Schriro, 481 F.3d 710, 711
(9thCir. 2007) (conviction pursuant to plea
agreement is final on expiration of the time for seeking Rule
32 relief).
Oros
was sentenced on August 24, 2015, and his convictions became
final 90 days later on November 22, 2015. Accordingly,
Oros' one year limitations period began on November 23,
2015, and he was required to file his Petition in this Court
by November 23, 2016. Instead, he filed his Petition over a
year later, on January 12, 2018.
Oros'
Motion for Correction of Sentence did not toll his
limitations period. Oros did not initiate post-conviction
relief proceedings until January 5, 2017, after the one year
limitations period had already ended. Because Oros'
motions and PCR proceeding did not toll the time period
before the November 23, 2016 expiration date, his Petition is
untimely.
Oros
is Not Entitled to Equitable Tolling.
Oros'
Petition is untimely unless he can show that he is entitled
to equitable tolling. To make such a showing, Oros must
demonstrate both that he pursued his rights diligently and
that some extraordinary circumstance prevented him from
filing his Petition. Holland v. Florida, 560 U.S.
631, 649 (2010). The Ninth Circuit has also recognized an
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