Brown v. Ryan

          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 ...