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Molina v. Stolc

United States District Court, D. Arizona

February 13, 2019

Alfred Molina, Jr., Petitioner,
v.
Bruno Stolc; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE

         Pending 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)

         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

         Molina 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)

         On 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)

         Molina 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)

         Molina 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)

         On 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).

         On 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 timely reply.

         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 ...

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