Greene v. Ryan

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge

         TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:

         Petitioner Ronald Francis Greene has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         Petitioner raises one claim of ineffective assistance of counsel in his Petition. Petitioner was sentenced in 2006, and his sentence was final 30 days later because he did not pursue post-conviction relief. The instant Petition was due in 2007 but was not filed until 2018. Petitioner's claim is untimely. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts and Trial Procedural History.

         The Maricopa County Superior Court included a summary of the underlying facts and procedural history of Petitioner's case:

Defendant entered a plea agreement and pled guilty to two dangerous crimes against children: one count of sexual exploitation of a minor, a class-2 felony, and one count of attempted sexual exploitation of a minor, a class-3 felony. On June 29, 2006, the Court entered judgment and sentenced Defendant to a 17-year flat term of imprisonment for sexual exploitation of a minor. In addition, the Court suspended imposition of sentence for the attempted sexual exploitation offense and placed Defendant on a lifetime term of probation commencing upon absolute discharge from prison. At sentencing Defendant received a form titled “Notice of Rights of Review After Conviction and Procedure.” Defendant acknowledged receipt by signing the form.

(Doc. 11-10, Ex. I at 2-3.)

         b. Petitioner's State Post Conviction Relief Proceedings.

         On May 14, 2018, Petitioner filed a post-conviction relief (“PCR”) notice. (Doc. 11-9, Ex. H, at 2-4.)^[1] Petitioner did not request appointment of counsel. (Id. at 3.) On June 6, 2018, the Maricopa County Superior Court found that Petitioner's PCR claims were untimely, and that Petitioner failed to assert substantive claims and provide reasons for their untimeliness. (Doc. 11-10, Ex. I at 3.) The Superior Court dismissed the Petition. (Id. at 4.)

Under Rule 32.4(a)(2)(C) of the Arizona Rules of Criminal Procedure, the Notice of Request for Post-Conviction Relief must be filed within 90 days of the entry of judgment. This date is clearly stated in the “Notice of Rights of Review After Conviction and Procedure” form that Defendant received at sentencing. Because this Court sentenced Defendant on June 29, 2006, the deadline for Defendant's Notice of Request for ...