Leyva v. Ryan

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending before the court is a petition for writ of habeas corpus filed on June 8, 2018, by Eric Cardoza Leyva, an inmate currently held in the Arizona State Prison Complex in Kingman, Arizona. (Doc. 1)

         Pursuant to the Rules of Practice of this court, the matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order dismissing the petition. It is time-barred.

         Summary of the Case

         Leyva was convicted after a plea of guilty to molestation of a child and attempted molestation of a child. (Doc. 12-1, pp. 35-39, 43) On April 10, 2014, the trial court sentenced Leyva, pursuant to a plea agreement, to 17 years' imprisonment and lifetime probation. Id.; (Doc. 12-1, pp. 14-16) At the sentencing hearing, the trial court informed Leyva in writing of his right to file notice of post-conviction relief within 90 days of entry of judgment. (Doc. 12-1, p. 41)

         On July 18, 2016, approximately two years later, Leyva filed notice of post-conviction relief (PCR). (Doc. 12-1, p. 46) He filed a petition on August 9, 2016. (Doc. 12-1, p. 61) The trial court dismissed the PCR proceedings on September 28, 2017 as untimely. (Doc. 12-1, p. 66) Leyva then had 30 days to file a petition for review. Ariz.R.Crim.P. 32.9(c)(1)(A)

         On April 30, 2018, approximately seven months later, Leyva filed a petition for review with the Arizona Court of Appeals. (Doc. 12-1, p. 68) He argued counsel took payment up-front and was ineffective for failing to reasonably prepare and ethically defend the action. (Doc. 12-1, p. 69) He argued PCR counsel was ineffective for failing to find any colorable claims. (Doc. 12-1, p. 70) The Arizona Court of Appeals dismissed the petition for review as untimely on May 7, 2018. (Doc. 12-1, pp. 73-74)

         On June 4, 2018, Leyva constructively filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1, p. 11) He claims counsel was ineffective for failing to investigate, failing to prepare for sentencing, failing to present evidence of mitigating circumstances, failing to make meritorious arguments, failing to assert provocation, failing to introduce additional evidence of good character pertaining to his military service, and failing to exclude inadequate evidence against the defendant. (Doc. 1, pp. 6-7) Furthermore, counsel withheld important information to coerce the defendant to sign the plea agreement. Id. His claims are entirely conclusory without any further explanation or factual support. Id.

         On October 3, 2018, the respondents filed an answer arguing, among other things, that the petition is time-barred. (Doc. 12) The respondents are correct. The court does not reach the respondents' alternate arguments.

         Leyva filed a reply on November 5, 2018. (Doc. 15) He argues this court should set aside the time bar and address the merits of his claims. (Doc. 15, p. 3)

         Discussion

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The petition, however, must be filed within the applicable limitation period or it will be dismissed. The statute reads in pertinent part as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...