Oros v. Ryan

          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 (9^thCir. 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 ...