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Cruz Bravo v. Ryan

United States District Court, D. Arizona

January 2, 2019

Rene De La Cruz Bravo, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine, United States Magistrate Judge

         This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. Petitioner Rene De La Cruz Bravo (“Petitioner”), who is confined in the Arizona State Prison Complex-Kingman, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Docs. 1), challenging his 2008 conviction and sentence resulting from guilty pleas pursuant to a plea agreement entered in the Maricopa County Superior Court. In an August 16, 2018 Order, the Court noted that Petitioner had not signed his Petition and gave him 30 days to submit a completed and signed certificate, certifying that Petitioner's signature on the certificate would serve as an original signature on his Petition (Doc. 4). On August 27, 2018, Petitioner filed the required signature certificate (Doc. 5). The Court ordered that Respondents answer the Petition (Doc. 8). Respondents filed a Limited Answer (Doc. 11), and Petitioner filed a Reply (Doc. 12). This matter is ripe for decision.

         For the reasons set forth below, the undersigned recommends that this Court deny and dismiss the Petition with prejudice as untimely and deny a certificate of appealability.

         I. BACKGROUND

         A. Convictions and Sentences

         In 2007, Petitioner plead guilty in Maricopa County Superior Court case #CR 2007-130966 to Amended Count 1, Attempted Sexual Conduct with a Minor, a class 3 felony; and Amended Count 4, Sexual Conduct with a Minor, a class 2 felony (Doc. 11, Exs. B, C; Doc. 11-1 at 9-14). The victim of the crimes was an eleven-year-old girl (Doc. 11, Exs. A, D; Doc. 11-1 at 3-4, 16-17). The plea agreement called for a stipulated, 25-year term of imprisonment for Count 4 and lifetime probation upon release from imprisonment for Count 1 (Id.). The state agreed to dismiss Counts 2, 3, 5, 6, and 7 (Id.). After Petitioner formally plead guilty, pursuant to the agreement, the trial court accepted the guilty pleas (Doc. 11, Ex. C; Doc. 11-1 at 12-14). On January 30, 2008, the trial court sentenced Petitioner in accordance with the stipulated terms of the plea agreement (Doc. 11, Exs. B, E; Doc. 11-1 at 8-12, 26-31). Petitioner was represented by counsel throughout the trial court proceedings (see, e.g., Doc. 11, Exs. B-E; Doc. 11-1 at 8-31).

         B. Appeal and PCR Proceedings

          Petitioner did not appeal his conviction and sentence (Doc. 1 at 2), which he could not do, in any event, because he was convicted by plea agreement. See A.R.S. § 13- 4033(B); Summers v. Schriro, 481 F.3d 710, 711-717 (9th Cir. 2007) (concluding that an “‘of right proceeding,' [post-conviction relief or PCR proceeding] available under Arizona Rule of Criminal Procedure 32 to criminal defendants who plead guilty or no contest, is a form of ‘direct review' within the meaning of 28 U.S.C. § 2244(d)(1)”).

         On April 13, 2009, more than 90 days after the January 30, 2008, sentencing, Petitioner filed his first notice of post-conviction relief (“PCR”) pursuant to Arizona Rule of Criminal Procedure 32; the PCR notice checked a box for ineffective assistance of counsel, but otherwise stated no ground (Doc. 11, Ex. F; Doc. 11-1 at 32-35). The superior court determined that Petitioner's PCR notice was untimely and failed to state a colorable claim for relief (Doc. 11, Ex. G; Doc. 11-1 at 36-38). Thus, the superior court dismissed the PCR proceedings (Doc. 11, Ex. G; Doc. 11-1 at 36-38). Petitioner did not appeal the dismissal (see Doc. 11, Exs. I, K; Doc. 11-1 at 44, 50-52). Petitioner filed a second PCR petition on February 7, 2018, seeking a sentence reduction based on ineffective assistance of counsel (Doc. 11, Ex. H; Doc. 11-1 at 40-42). The superior court determined again that the notice was untimely and failed to state a colorable claim for relief because ineffective assistance of counsel cannot be raised in an untimely and successive proceeding, so it dismissed the notice (Doc. 11, Ex. I; Doc. 11-1 at 43-45). Petitioner appealed to the Arizona Court of Appeals, which affirmed the dismissal (Doc. 11, Ex. J; Doc. 11-1 at 46-49).

         C. Petitioner's Habeas Claims

         Petitioner asserts two grounds in his Petition filed on August 10, 2018[1] (Doc. 1). Petitioner names Charles Ryan as Respondent and the Arizona Attorney General as an Additional Respondent (Id.). In Ground One, Petitioner claims his Sixth Amendment rights were violated because he received ineffective assistance of counsel (Id. at 6). In Ground Two, Petitioner contends his Fourteenth Amendment rights were violated due to “trial court error and abuse of discretion” (Id. at 7).

         Respondents contend that the Petition fails because it was untimely filed, the claims were waived by Petitioner's guilty pleas, and that the claims are procedurally defaulted without excuse (Doc. 11).

         II. ...


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