United States District Court, D. Arizona
ORDER
Honorable Lynnette C. Kimrmins United States Magistrate Judge
Petitioner
Robert Brown, incarcerated at the Arizona State Prison in
Buckeye, Arizona, has filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. Before this Court
are the Petition (Doc. 1), Respondents' Answer (Doc. 22),
Petitioner's Reply (Doc. 41), Petitioner's Supplement
(Doc. 44), and Petitioner's Amicus Brief (Doc. 42). The
parties consented to exercise of jurisdiction by a Magistrate
Judge, pursuant to 28 U.S.C. § 636(c)(1). (Doc. 18.) The
Court finds that Petitioner's claims should be dismissed
as untimely.[1]
FACTUAL
AND PROCEDURAL BACKGROUND
In the
Superior Court of Pima County, Brown pled guilty to robbery
(Count I) and armed robbery (Count IV). (Doc. 23, Ex. C.) On
November 21, 2011, the court sentenced Brown to 4.5 years
imprisonment on Count I and 9.25 years imprisonment on Count
IV to be served consecutively. (Doc. 23, Ex. F.)
On
January 11, 2012, Brown filed a Notice of Post-Conviction
Relief (PCR). (Id., Ex. G.) Brown's appointed
PCR counsel filed a notice stating that she had not
identified any colorable claims meriting post-conviction
review and requested that Brown be allowed time to file a pro
se petition. (Id., Ex. I.) On July 30, 2012, the
court dismissed the PCR proceeding because Brown failed to
file a petition before his July 6, 2012 deadline.
(Id., Ex. J.)
On
October 17, 2012, Brown filed a Petition for PCR/Supplemental
Brief-which the court treated as the petition for Brown's
first post-conviction proceeding-asserting that he was not
competent to enter into a plea agreement and that his counsel
was ineffective for failing to seek an evaluation of his
competency. (Id., Exs. K, N.) The court summarily
dismissed the Petition because Brown failed to state a
colorable claim for relief. (Id., Ex. N.) On July 3,
2013, Brown's counsel filed a request for an extension of
time for Brown to file a pro se petition for review with the
court of appeals. (Id., Ex. V.) The court granted
extensions until February 3, 2014, but Brown failed to file a
petition for review by this date. (Id., Exs. W, X,
Y.)
On
February 4, 2014, Brown filed a pro se brief titled
“Supplement Brief to Petition for Review, ” which
the court treated as a second PCR Petition rather than a
misfiled petition for review. (Doc 24, Ex. P.) On August 6,
2014, the court summarily dismissed the Petition because
Brown raised the same claims in his first PCR proceeding,
thus, they were precluded by Arizona Rule of Criminal
Procedure 32.2(a). (Id., Ex. R.) Brown then filed a
pro se Petition for Review with the Arizona Court of Appeals.
(Id., Ex. S.) On December 19, 2014, the court
granted review but denied relief because the claims were
finally adjudicated in the first post-conviction proceeding
and were precluded under Arizona Rule of Criminal Procedure
32.2(a)(2). (Doc. 23, Ex. O.) Brown petitioned for review
with the Arizona Supreme Court, but the court declined review
on September 16, 2015. (Doc. 24, Ex. T.) Brown filed a third
PCR Petition on August 9, 2016, which the court dismissed as
untimely. (Doc. 44, Ex. A.)
Brown
filed a Petition for Writ of Habeas Corpus in this Court on
February 21, 2017, asserting (1) ineffective assistance of
counsel for failure to obtain a mental health evaluation, (2)
ineffective assistance of counsel in directing him to sign a
plea agreement while knowing that he was mentally ill, and
(3) prosecutorial misconduct because the trial judge relied
on false information in the form of an outdated mental health
report. (Doc. 1.)
DISCUSSION
Respondents
argue that Brown'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
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