Pabro v. Ryan

          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 ...