United States District Court, D. Arizona
Jerry A. Pabro, Petitioner,
v.
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS UNITED STATES MAGISTRATE JUDGE.
Petitioner
Jerry Pabro, incarcerated at the Arizona State Prison in
Florence, Arizona, filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on August 28, 2017.
Pursuant to the Rules of Practice of this Court, this matter
was referred to Magistrate Judge Kimmins for Report and
Recommendation. Before this Court are the Petition (Doc. 1),
Respondents' Answer (Docs. 11-14), and Pabro's Reply
(Doc. 15). The Magistrate Judge recommends the District
Court, after its independent review of the record, dismiss
the Petition because it is time-barred.
FACTUAL
AND PROCEDURAL BACKGROUND
In the
Superior Court of Pima County, Pabro pled guilty to sexual
assault. (Doc. 11, Exs. A, B.) On June 3, 2013, the judge
sentenced Pabro to seven years. (Id., Ex. C.) On
November 13, 2014, Pabro filed a document entitled
“Confirmation of Sentence, ” in which he argued
that his plea agreement provided that he would serve 85% of
his sentence but the prison calculated his sentence based on
“flat time.” (Id., Ex. D.) The trial
judge agreed that the intent of the plea agreement was that
Pabro would be eligible for release after serving 85% of his
7-year sentence. However, Pabro statutorily was required to
serve flat time based on his crime. Therefore, on November
25, 2014, the judge extended Pabro's time to seek
post-conviction relief (PCR), noting that the only remedy
available would be withdrawal from the plea agreement.
(Id., Ex. F.) Pabro filed a notice of PCR and the
court appointed counsel. (Id., Exs. G, H.) Counsel
filed a notice that Pabro did not wish to pursue withdrawal
from the plea. Therefore, counsel did not intend to file a
PCR petition, but the court should grant Pabro additional
time to file a pro se petition. (Id., Ex. I.) The
court granted Pabro time to file a petition on his own behalf
but, on May 22, 2015, dismissed the PCR proceeding when Pabro
did not timely file one. (Id., Exs. J, K.) In
November 2016, Pabro filed a “Motion of Illegal
Sentence, ” which the PCR court summarily dismissed as
untimely. (Id., Exs. L, M.) Pabro acknowledges in
his Habeas Petition that he did not seek appellate review of
the PCR court's dismissals. (Doc. 1 at 5.)
DISCUSSION
Respondents
argue that Pabro's Habeas Petition is time-barred because
it violates the statute of limitations.
Statute
of Limitations and Statutory Tolling
Under
the Antiterrorism and Effective Death Penalty Act (AEDPA) of
1996, federal petitions for writ of habeas corpus filed by
state prisoners are governed by a one-year statute of
limitations period. 28 U.S.C. § 2244(d)(1). The
limitations period begins to run from the latest of:
(A) the date on which judgment became final by the conclusion
of direct review or the expiration of the time for seeking
such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id.
In
applying (d)(1)(A), the Court must assess when direct review
of Pabro's conviction became final. By pleading guilty,
Pabro waived his right to file a direct appeal and his only
option was to file a PCR Petition pursuant to Rule 32. Ariz.
R. Crim. P. 17.2(e). In Summers v. Schriro, the
Ninth Circuit held that a Rule 32 of-right proceeding is a
form of direct review, and so the “AEDPA's one-year
statute of limitations does not begin to run until the
conclusion of the Rule 32 of-right proceeding and the review
of that proceeding, or until the expiration of the time for
seeking such proceeding or review.” 481 F.3d 710, 711
(9th Cir. 2007). Pabro was sentenced on June 3, 2013, and had
95 days in which to initiate a PCR proceeding. Ariz. R. Crim.
P. 1.3(a)(5), 32.4(a)(2)(C). Therefore, his Notice of PCR was
due by September 6, 2013. Because the PCR court granted an
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