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 April 16, 2018, by Alfred Molina, Jr., an inmate
currently held in the Arizona State Prison Complex in San
Luis, 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 burglary in the
second degree in case CR20123830-001 and burglary in the
second degree in case CR20123949-001. (Doc. 19, pp. 31-33) On
March 7, 2013, the trial court sentenced Molina, pursuant to
a plea agreement, to concurrent terms of 10 years'
imprisonment. Id.; (Doc. 19-3, pp. 2-6) At the
sentencing hearing, Molina was given written notice of his
right to file for post-conviction relief. (Doc. 19, p. 41);
(Doc. 19, pp. 61-62)
January 28, 2014, Molina filed an untimely notice of
post-conviction relief (PCR). (Doc. 19, p. 44) Appointed
counsel filed notice that he reviewed the record but could
find no meritorious issues. (Doc. 20, pp. 3-4) On August 28,
2014, the court gave Molina permission to file a petition pro
se. (Doc. 20, p. 6) Molina argued that trial counsel failed
to challenge erroneous information in his presentence report
and failed to present mitigating evidence regarding his
mental capacity and his prior head injury. (Doc. 20, p. 147)
The trial court denied the PCR proceedings on December 3,
2014. (Doc. 20, pp. 121-127)
filed a petition for review on December 29, 2014. (Doc. 20,
p. 129) The Arizona Court of Appeals denied review on April
22, 2015. (Doc. 21, p. 3) The court held that Molina's
claims were either waived pursuant to Ariz. R.Crim.P.
32.9(c)(1) for failure to provide meaningful argument or
precluded because they were not raised below. (Doc. 21, pp.
4-5); State v. Molina, 2015 WL 1880935 (Ariz.App.
2015). Molina did not petition the Arizona Supreme Court for
review. (Doc. 21, p. 7)
maintains that he filed a second petition for post-conviction
relief (PCR) on November 20, 2017, which was dismissed on
October 24, 2017, an obvious impossibility. (Doc. 1, p. 4) He
indicates with a check mark on the court's habeas form
that he filed a petition for review of this dismissal with
the Arizona Supreme Court. Id., p. 5 He does not
indicate whether he filed a petition for review with the
Arizona Court of Appeals. Id., p. 5 The form asks
the petitioner to explain why he failed to appeal to the
Arizona Court of Appeals if he did not do so. (Doc. 1, p. 5)
This section was left blank possibly indicating that Molina
believes he did file such an appeal. Id. The
respondents have examined the Arizona Court of Appeals docket
but have been unable to find any pleadings associated with
this PCR petition. (Doc. 18, p. 5, n. 1)
April 16, 2018, Molina filed in this court a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1) He claims (1) the state engaged in malicious
prosecution by over charging his offenses, (2) the
pre-sentence report was inaccurate, and (3) counsel was
ineffective for failing to hold a mitigation hearing. (Doc.
1) He maintains that he presented all of his issues to the
Arizona Court of Appeals on direct appeal, in his first PCR
petition, and in his second PCR petition. (Doc. 1) There is,
in fact, no direct appeal for a defendant, such as Molina,
who is convicted by pleading guilty. See Summers v.
Schriro, 481 F.3d 710, 711 (9thCir. 2007).
November 7, 2018, the respondents filed an answer arguing,
among other things, that the petition is time-barred. (Doc.
18) They are correct. The court does not reach the
respondents' alternate arguments. Molina did not file a
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