United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. BOWMAN UNITED STATES MAGISTRATE JUDGE
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)
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).
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order
dismissing the petition. It is time-barred.
of the Case
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)
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)
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)
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.
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.
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)
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