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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Andrew Paul Gilardi, 

Petitioner, 

v. 

Charles Ryan, et al., 

Respondents.

No. CV-17-00609-TUC-RM (BPV)

REPORT AND 

RECOMMENDATION 

 Pending before the Court is Petitioner Andrew Paul Gilardi’s Pro Se Petition 

under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (NonDeath Penalty). (Doc. 1). Respondents filed a Limited Answer to Petition for Writ of 

Habeas Corpus (Doc. 7), and Petitioner filed a Reply (Doc. 11). This matter was referred 

to Magistrate Judge Bernardo P. Velasco for a Report and Recommendation pursuant to 

Rules 71.2 and 72.2 of the Local Rules of Civil Procedure. (Doc. 2). For the reasons 

stated herein, the Magistrate Judge recommends that the District Court: (1) find that 

Petitioner’s claims pertaining to his original sentence are untimely; (2) find that 

Petitioner’s probation revocation claims are non-meritorious; and (3) deny the §2254 

Habeas Petition. 

I. FACTUAL AND PROCEDURAL HISTORY

 On June 13, 2010, Amber Duke (“Ms. Duke”) ended her eight-year relationship 
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with Andrew Paul Gilardi. (Exh. B, Doc. 7-1 at 12).1 Ms. Duke filed for an Order of 

Protection on July 27, 2010, and Petitioner received service on August 11, 2010. Id. After 

the Order of Protection expired, Ms. Duke filed for another Order of Protection, which 

was served on September 30, 2011. Id. 

Petitioner violated the Order of Protection and continued to contact Ms. Duke and 

her family members between June 14, 2010 and October 20, 2011. Id. For instance, he 

contacted Ms. Duke’s friends and family electronically, and posted a photo-shopped 

picture online of someone slitting Ms. Duke’s throat and another of Ms. Duke lying 

headless without arms. Id. In addition to these online posts, Petitioner also posted music 

videos relating to murdering loved ones on Facebook and accessed Ms. Duke’s email 

without permission. Id.

Petitioner attempted to make physical contact with Ms. Duke on multiple 

occasions as well. He appeared at the home of one of her friends and also followed Ms. 

Duke home from work. Id. Due to the repeated violations, on October 20, 2011 an arrest 

warrant was issued for the Petitioner. Id.

a. Plea Agreement and Sentencing

 Petitioner was charged with nineteen counts, which included seventeen counts 

based on his contact with Ms. Duke and her parents, and two counts of interference with 

judicial proceedings. (Exh. D, Doc. 7-1 at 41). Pursuant to a plea agreement, Petitioner 

pled guilty to one count of stalking, a class three felony; and one count of harassment, a 

class one misdemeanor. (Exh. A, Doc. 7-1 at 3). 

 On April 19, 2012, Petitioner was given five years of probation on each count, to 

run concurrently. (Exh. A, Doc. 7-1 at 3). As part of his probation, Petitioner was also 

required to serve nine months of incarceration in the Pima County Jail. Id. Petitioner did 

not directly appeal, or file a notice for post-conviction relief within 90 days of this 

sentence. 

 On October 13, 2014, after Petitioner admitted to violating some of the terms of 

 

1

 Factual findings by the state court are given the presumption of being correct absent clear and 

convincing evidence to the contrary. See 28 U.S.C. §2254(e)(1); Schriro v. Landrigan, 550 U.S. 

465, 473-74 (2007); cf. Rose v. Ludy, 455 U.S. 509, 519 (1982). 
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his probation, the state court revoked Petitioner’s probation and sentenced him to what 

the court referred to as an “aggravated term” of seven years, with two hundred ninetyfive (295) days credit for time served. (Doc. 11 at 18). Id. The state court found that “the 

affect the crime had upon the victim and the continuing threat to anyone the defendant is 

in a relationship with” were aggravating circumstances. Id. 

b. PCR Petition

 Petitioner filed a Notice of Post-Conviction Relief on October 28, 2014. (Exh. A, 

Doc. 7-1 at 3). Petitioner was appointed counsel. Id. On March 15, 2015, counsel filed a 

Notice of Review, finding no colorable claims and asking that Petitioner be permitted to 

proceed pro se. Id. The state court ordered Petitioner to file his Pro Se Petition for PostConviction Relief (“PCR Petition”) no later than December 31, 2016. Id. Petitioner 

claims that he mailed his PCR Petition on December 28, 2016 (Exh. D, Doc. 7-1 at 28), 

however, the Clerk of Court filed it on January 9, 2017. (Doc. 1-1 at 11-12; Exh. A, Doc. 

7-1 at 3). The PCR Petition alleged the following: 

1) The Arizona statutes under which Petitioner pled guilty and was convicted in his 

original sentence were unconstitutional; 

2) The sentence imposed at the original 2012 sentencing and the 2014 disposition 

were not authorized by law, and the Court did not notify Petitioner of its intent to 

impose an aggravated term at the time of the 2014 disposition hearing; and 

3) Ineffective assistance of counsel, both at the time of 2012 sentencing and at the 

time of the 2014 probation revocation hearing. 

(Exh. A. Doc. 7-1 at 3-4). 

 The state court found that the PCR Petition was not timely filed and dismissed it 

on March 13, 2017, adding that even if it had been filed on time, the state court would 

have dismissed the PCR Petition because it attempted to raise claims that were waived by 

the acceptance of a plea agreement or barred. Id. at 4. 

 On October 2, 2014, Petitioner petitioned for review to the Arizona Court of 

Appeals. (Exh. D, Doc. 7-1 at 21-38). While the petition for review was pending, on 

November 30, 2017, Petitioner filed the instant §2254 Habeas Petition (“§ 2254 

Petition”). (Doc. 1). 
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 On February 2, 2018, the appellate court denied relief. State v. Gilardi, 2018 WL 

776018 *1 (Ariz. App. Feb. 8, 2018). First, it found that to the extent that Petitioner’s 

PCR Petition challenged his original sentence, it was untimely because he failed “to seek 

post-conviction relief within ninety days of his sentence.” Id. at ¶ 6. In addition, the only 

arguable exception to this deadline was raised in Petitioner’s reply, and under state law 

the trial court was within its discretion to choose not to address it. Id. As to his probation 

revocation claims, the appellate court agreed with Petitioner that his date of filing the 

PCR Petition was the date in which he delivered it to prison authorities on December 28, 

2016. Id. at ¶ 5. However, the appellate court declined to address this issue because 

regardless of untimeliness, Petitioner lacked any colorable claim for post-conviction 

relief. Id. 

c. Instant § 2254 Habeas Petition

 Petitioner’s §2254 Petition raises seven grounds for relief:2

 GROUND 1 – Challenging the constitutionality of the statue under which he was 

originally sentenced. (Doc. 1-1 at 13- 14). 

 GROUND 2 – Arguing that his right to appeal was not waived when he pled guilty 

during his original sentence. (Doc. 1-1 at 12). 

 GROUND 3 – Stating the state court lacked jurisdiction to sentence him in his 

original sentence. (Doc. 1-1 at 13). 

 GROUND 4 – Claiming trial counsel rendered ineffective assistance for failing to 

conduct a mental health evaluation during his original sentencing proceedings. 

(Doc. 1-1 at 14, 19). 

 GROUND 5 – Contending that his original nine-month jail sentence was a 

concurrent sentence for both offenses, and constituted double jeopardy. (Doc. 1-1 

at 17). 

 GROUND 6 – Arguing the trial court abused its discretion during his probation 

revocation because the court used aggravating factors not present at the time of his 

original sentencing to revoke probation. (Doc. 1-1 at 18). 

 GROUND 7 – Claiming ineffective assistance of counsel during Petitioner’s 

probation revocation hearing because counsel failed to notify Petitioner of the 

state court’s intent to aggravate his sentence and for not introducing mental health 

 

2

 Although Petitioner’s habeas lists three grounds for relief, the claims include challenges to both 

his original sentencing and probation revocation. For clarity, the Court divides his claims into 

seven grounds. Courts may construct petitions in a manner that “create[s] a better 

correspondence between the substance of a pro se motion’s claim and its underlying legal basis.” 

Castro v. United States, 540 U.S. 375, 382-83 (2003). 
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issues as mitigating factors. (Doc. 1-1 at 19). 

 Respondents argue that Arizona law requires that a petitioner file a Notice of PostConviction Relief pursuant to Arizona Rule of Criminal Procedure 32.4(a) within 90 days 

of his original sentence – in this case by July 19, 2012. (Doc. 7 at 5). Because Petitioner 

did not file a Notice of Post-Conviction relief within the 90 days after his sentencing, the 

state court properly dismissed Petitioner’s PCR Petition as untimely, and this state 

procedural rule precludes relief in habeas. Id. at 6. 

Furthermore, Respondents contend that Petitioner’s § 2254 Petition is untimely. 

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a oneyear limitation for filing a habeas petition. 28 U.S.C. § 2244(d)(1). The clock began to 

run the day after Petitioner’s original sentence became final on July 19, 2012. (Doc. 7 at 

6). Accordingly, the Petitioner’s federal habeas petition was due one year from when the 

Petitioner’s sentence and convictions became final – on July 20, 2013. Id. Since he did 

not file his § 2254 Petition until several years after this date, it is time-barred. Id. In 

addition, Respondents argue that Petitioner is not entitled to equitable tolling because his 

claims of ignorance of the law do not afford tolling. (Doc. 7 at 8). 

II. STANDARD OF REVIEW

 A writ of habeas corpus under § 2254 may be evaluated by a federal court only 

when a petitioner alleges “that he is in custody in violation of the Constitution or laws or 

treaties of the United States.” 28 U.S.C. § 2254(a). Furthermore, a §2254 habeas petition: 

shall not be granted with respect to any claim that was adjudicated on the 

merits in State court proceedings unless the adjudication of the claim – (1) 

resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or (2) resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding. 

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 

When evaluating a federal habeas petition, the federal courts “owe a ‘double dose 

of deference’ to the state court’s judgment.” Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 
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2013) (quoting Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011)). A state court’s 

decision is unreasonable if it “correctly identifies the governing legal rule but applies it 

unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 

362, 407-08 (2000). An unreasonable determination must be more than simply incorrect; 

it must be “so lacking in justification that there was an error . . . beyond any possibility 

for fairminded disagreement.” Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington 

v. Richter, 562 U.S. 86, 103 (2011)). 

a. Exhaustion of State Remedies

 For the District Court to review a writ of habeas corpus, a petitioner must show he 

has exhausted his state remedies by fairly presenting the same issues to the state’s highest 

court. 28 U.S.C. § 2254(b)(1)(A); see also Coleman v. Thompson, 501 U.S. 722, 731 

(1991). To fairly present a claim, petitioner must “describe[] the operative facts and legal 

theory upon which his claim is based.” Duncan v. Henry, 513 U.S. 364, 370 n.1 (1995) 

(quoting Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir. 1986). The requirement to 

exhaust state remedies makes certain that the state courts are given an opportunity to 

address constitutional violations without the federal court’s intrusion. Rose, 455 U.S. at 

515. Failure to exhaust may lead to dismissal. Gutierrez v. Griggs, 695 F.2d 1195 (9th 

Cir. 1983). “[O]nce the federal claim has been fairly presented to the state courts, the 

exhaustion requirement is satisfied.” Picard v. Connor, 404 U.S. 270, 275 (1971). In 

Arizona, “in cases not carrying a life sentence or the death penalty, review need not be 

sought before the Arizona Supreme Court in order to exhaust state remedies.” Swoopes v.

Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Crowell v. Knowles, 483 

F.Supp.2d 925, 933 (D. Ariz. 2007). However, even if a petitioner’s claims are not 

exhausted, the District Court may deny a claim on the merits. 28 U.S.C. § 2254(b)(2). 

b. Procedural Default 

 In addition to exhaustion, a procedural default also precludes review in habeas. 

Unlike exhaustion, wherein a federal claim has never been presented in the state court, a 

procedural default occurs when “a state court has been presented with a federal claim, but 

declined to reach the issue for procedural reasons, or if it is clear that the state court 
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would hold the claim procedurally barred. . . . Thus, in some circumstances, a petitioner’s 

failure to exhaust a federal claim in state court may cause a procedural default.” Casset v. 

Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005) (internal quotations and citations omitted). 

 If there are claims that were fairly presented in state court but found defaulted on 

state procedural grounds, such claims will be found procedurally defaulted in federal 

court so long as the state procedural bar was independent of federal law and adequate to 

warrant preclusion of federal review. See Harris v. Reed, 489 U.S. 255, 262 (1989); 

Coleman, 501 U.S. at 729. This is because the District Court has “no power to review a 

state law determination that is sufficient to support the judgment, resolution of any 

independent federal ground for the decision could not affect the judgment and therefore 

would be advisory.” Coleman, 501 U.S. at 729. Furthermore, it is well established that 

Arizona’s preclusion rule is independent of federal law, see Stewart v. Smith, 536 U.S. 

856, 860 (2002), and the Ninth Circuit has repeatedly determined that Arizona regularly 

and consistently applies its procedural default rules such that they are an adequate bar to 

federal review of a claim. See Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014), cert. 

denied, 135 S. Ct. 710 (2014) (Arizona’s waiver rules are independent and adequate 

bases for denying relief); Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998) (overruled 

on other grounds) (Rule 32.2(a)(3) regularly followed and adequate); Poland v. Stewart, 

117 F.3d 1094, 1106 (9th Cir. 1997) (Arizona regularly applies procedural default rules); 

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996) (same). The District 

Court is precluded from reviewing a federal habeas petition “if the last state court 

rendering a judgment in the case rests its judgment on the procedural default.” Harris, 

489 U.S. at 262 

 Despite being procedurally defaulted, a District Court may review a habeas 

petition if petitioner can show cause for the default and prejudice, or demonstrate that 

failing to consider the claim would cause a “fundamental miscarriage of justice.” Dretke 

v. Haley, 541 U.S. 386, 393 (2004). “Cause” is a legitimate excuse that ordinarily relies 

on circumstances objectively unrelated to petitioner. Murray v. Carrier, 477 U.S. 478, 
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488 (1986). This includes “a showing that the factual or legal basis for a claim was not 

reasonably available to counsel, or that some interference by officials made compliance 

impracticable.” Id. (internal citations and quotations omitted). To show a “fundamental 

miscarriage of justice” occurred, a petitioner must demonstrate that the unconstitutional 

proceedings “probably resulted in a conviction of one who was actually innocent.” 

Schlup v. Delo, 513 U.S. 298, 327 (1995); Dretke, 541 U.S. at 393. 

III. TIMELINESS

a. Timeliness Under AEDPA 

 As a threshold matter, the Court must determine whether Petitioner’s § 2254 

Petition is timely filed. Petitioner’s habeas corpus petition was filed in 2017, therefore it 

is governed by the AEDPA. 28 U.S.C. § 2254(d). A petitioner must file a §2254 habeas 

petition within one year. 

[The one year statute of limitation] period shall run from the latest of – 

(A) the date on which the judgment became final by the conclusion of 

direct review or the expiration of the time for seeking such 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. 

28 U.S.C. § 2244(d)(1). “The time during which a properly filed application for state 

post-conviction or other collateral review with respect to the pertinent judgment or claim 

is pending shall not be counted toward any period of limitation[.]” 28 U.S.C. § 

2244(d)(2). 

b. Equitable Tolling

 The time for filing a habeas petition is tolled if a petitioner demonstrates “(1) the 

petitioner pursued his rights diligently, and (2) an extraordinary circumstance prevented 

timely filing.” Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014), cert. denied

sub nom., Yow Ming Yeh v. Biter, 135 S. Ct. 486 (2014). “This is a very high bar, and is 

reserved for rare cases.” Id. When the time for filing is equitably tolled, the one-year 

statute of limitations does not commence on the date of actual discovery, but on the date 

the factual basis for the claim “could have been discovered through the exercise of due 
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diligence.” 28 U.S.C. § 2244(d)(1)(D). Due diligence is an objective standard, 

however, petitioner’s individual circumstances should be evaluated when considering 

whether the petitioner acted diligently. Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 

2012). The date of accrual may only be prolonged “‘if vital facts could not have been 

known’ by the date the appellate process ended.” Id. (quoting Schlueter v. Varner, 384 

F.3d 69, 74 (3rd Cir. 2004). “[I]gnorance of the law and lack of legal sophistication do 

not alone constitute extraordinary circumstances warranting equitable tolling.” Chen v. 

Davey, 2016 WL 4269495, at *2 (citing Raspberry v. Garcia, 448 F.3d at 1154 (9th Cir. 

2006). 

Like a state procedural bar, an untimely habeas petition may also be considered by 

the District Court if failing to do so would be a “fundamental miscarriage of justice.” 

McQuiggin v. Perkins, 569 U.S. 383, 399 (2013). This may occur when “it is more likely 

than not that ‘no reasonable juror’ would have convicted [the petitioner].” Id.

IV. DISCUSSION

 There are two separate judgments in the present case: (1) the 2012 conviction and 

sentence (“original sentence”); and (2) the 2014 probation revocation. “Where a habeas 

petition challenges both [a petitioner’s] original conviction and a probation revocation, it 

is appropriate to separate the claims relating to the original conviction from the claims 

relating to the probation revocation.” King v. Ryan, No. CV-15-0265-PHX-NVW 

(ESW), 2016 WL 536654, at *4 (D. Ariz. Jan. 19, 2016) (citing Williams v. Smith, No. 

CV-11-578-HEH, 2012 WL 3985609, at *2 (E.D. Va. Sept. 11, 2012)). 

Furthermore, the statutory timeline for “any claims arising from the revocation of 

probation would begin to run when the judgment that revoked the petitioner’s probation 

became final.” King, 2016 WL 536654, at *4 (citing Davis v. Purkett, 296 F.Supp.2d 

1027, 1029-30 (E.D. Mo. 2003)); see also Williams v. Vasbinder, No. CV-05-73471-DT, 

2006 WL 2123908, at *2 (E.D. Mich. 2006) (addressing original judgments and 

revocation of probation as separate judgments with separate expiration dates for purposes 

of determining a statute of limitations). Here, Petitioner’s habeas petition challenges both 

judgments, and as a result there are two separate statute of limitations timelines: (1) for 
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the claims that pertain to the original sentence; and (2) for the claims that pertain to the 

probation revocation. 

a. Habeas Claims Challenging Petitioner’s Original Sentence are TimeBarred under the AEDPA 

Petitioner argues he is entitled to relief because the deadline for filing his federal 

habeas petition should be calculated starting from when his probation revocation became 

final rather than when his original sentence became final. (Doc. 11 at 12). Petitioner 

believes that he had ninety days from his probation revocation to file a Notice of PostConviction Relief. Id. Therefore, Petitioner argues that his habeas petition was filed 

within one year and is timely. The Petitioner’s calculations are as follows: 

Post-Conviction Relief 

 October 13, 2014 - Probation Revocation. (Exh. A, Doc. 7-1 at 3). 

 October 28, 2014 – Petitioner filed Notice of Post-Conviction Relief. Id.

 December 28, 2016 – Petitioner filed PCR Petition. (Doc. 1 at 11). 

 December 31, 2016 – Deadline for a timely PCR Petition, as extended by the state 

court. (Exh. A, Doc. 7-1 at 3). 

Habeas Petition 

 November 30, 2017 - Petitioner filed his § 2254 Petition. (Doc. 1). 

 December 31, 2017 - The one year AEDPA deadline for Petitioner to file his § 2254 

Petition. 

 For claims associated with the original sentence (Grounds 1-5) this is a gross 

miscalculation of the statutory limitations. When a defendant is sentenced pursuant to a 

plea agreement, a petition for post-conviction relief serves as “a form of direct review.” 

Summers v. Schriro, 481 F.3d 710, 716 (9th Cir. 2007); State v. Ward, 118 P.3d 1122, 

1125-26 (Ariz. 2005). To petition for post-conviction relief subsequent to a guilty plea, 

a notice must be filed “no later than 90 days after the entry of judgment and sentence.” 

Ariz.R.Crim.P. 32.4(a). After pleading guilty, Petitioner was sentenced on April 19, 

2012. Therefore, ninety days after that judgment, on July 19, 2012, Petitioner’s judgment 

became final pursuant to Arizona criminal rules and the AEDPA. As a result, Petitioner 

had one year from that date to file his § 2254 Petition in the District Court, on or before 
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July 20, 2013. Therefore Petitioner’s §2254 Petition, filed on December 28, 2017, was 

nearly four years overdue, and is untimely as it pertains to the claims having to do with 

his original conviction. 

In addition, Petitioner’s circumstances do not permit equitable tolling. Petitioner 

does not provide any reason that he was unable to raise his sentencing issues in a timely 

manner other than his suggested ignorance of the law. (Doc. 1 at 14-15). A pro se

litigant’s legal ignorance is not an extraordinary circumstance allowing for equitable 

tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009). 

Petitioner did not appeal his sentence in the time for appeal, nor did he file a PCR Notice 

or Petition challenging his original sentence. In addition, the factual basis for his claims 

were available to Petitioner at the original sentencing. Therefore, he has shown neither 

that he diligently pursued his rights nor that an extraordinary circumstance prohibited him 

from filing on time. 

Furthermore, Petitioner has raised no argument that demonstrates that failing to 

consider the claim would cause a fundamental miscarriage of justice. There is no 

evidence that Petitioner was actually innocent of the stalking and harassment charges and 

ample evidence existed supporting his conviction, including his own admissions. 

Finally, the appellate court dismissed his claims challenging his original sentence 

because it found the claims procedurally barred. State v. Gilardi, 2018 WL 776018, at *2 

(Ariz. App. Feb. 8, 2018). “[I]t is not the province of a federal habeas to reexamine statecourt determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 

(1991). The dismissal of Petitioner’s claims challenging his original sentence relied 

entirely on state law procedural grounds. The appellate court noted that Petitioner had 

procedurally waived the issue under Rule 32.1 because he did not file within the required 

time. Gilardi, 2018 WL 776018 *2 ¶6. Furthermore, insofar as Petitioner claimed he 

could not file in the time required, he did not raise this issue until his reply and so the 

court did not have to address that argument. Id. (citing State v. Lopezi, 221 P.3d 1052, ¶¶ 

7-8 (Ariz. App. 2014)). These state procedural determinations were procedural, 

independent of federal law, and did not require constitutional inquiry. Therefore, the 
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preclusion was based on adequate and independent state grounds precluding review in 

habeas. See Stewart, 536 U.S. at 860. 

The Court is precluded from evaluating Petitioner’s untimely claims. If Petitioner 

desired federal habeas review of his original sentence, the AEDPA required that he 

submit his federal habeas petition by July 2013. Petitioner’s PCR claims challenging his 

original sentence were procedurally defaulted in the state courts based on adequate and 

independent state grounds, and the instant habeas is untimely without excuse. 

b. Petitioner’s Probation Revocation Claims are Separate from his 

Challenge to his Original Sentence

 Petitioner’s probation revocation on October 13, 2014 was a separate judgment 

than that of the original sentence. See Landeros-Lopez v. Schriro, 2008 WL 2705372, at 

*6 (D. Ariz. July 9, 2008) (determining that Petitioner had ninety days from his probation 

revocation to seek review and one-year from that ninety-day period to file his petition for 

writ of habeas corpus). Ordinarily, the probation revocation would be final after the 

ninety day period imposed by Arizona Rule of Criminal Procedure 32.4(a), but the state 

court granted Petitioner an extension to file his PCR Petition, until December 31, 2016. 

(Exh. A, Doc. 7-1 at 3). 

 Petitioner claims that he signed the PCR Petition and handed it to prison officials 

on December 28, 2016. (Exh. D, Doc. 7-1 at 28). However, the Clerk of Court 

timestamped the PCR Petition on January 9, 2017. (Exh. A, Doc. 7-1 at 3). The trial court 

denied Petitioner’s PCR Petition, stating that because the timestamp date was the 

technical filing date it was filed it was untimely. (Exh. 2, Doc. 1-1 at 23). 

 Petitioner petitioned for review to the Arizona Court of Appeals, arguing that 

under state law, his PCR Petition should have been considered filed on the date he signed 

and turned it over to prison authorities. (Exh. D, Doc. 7-1 at 28) (citing Anthony v. 

Cambra, 236 F.3d 565 (9th Cir. 2000)). The appellate court conceded that state court 

should have calculated the filing date as the date Petitioner signed and submitted his PCR 

Petition to prison authorities for delivery. Gilardi, 2018 WL 776018 at *1, ¶ 5. Therefore, 

the appellate court did not deny Petitioner’s probation revocation claims based on 
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untimeliness. Rather, it ignored the issue of timeliness and dismissed the PCR Petition on 

the merits. 

This Court looks to the last-reasoned state court decision to determine whether 

habeas relief is warranted. See Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 

2005). In this instance, the last-reasoned analysis is the Arizona Court of Appeals 

decision. Since the appellate court denied Petitioner’s habeas petition challenging his 

probation revocation proceedings based on the merits and not the timeliness, Petitioner’s 

§ 2254 Petition may be timely as it pertains to the probation revocation because it was 

filed within one year from when Petitioner filed his state court PCR Petition. However, 

like the appellate court, this Court need not reach the timeliness issue because no matter 

the conclusion, Petitioner’s claims have no merit. 

c. Petitioner’s Claims Challenging Probation Revocation Proceedings do 

not Entitle him to Relief Because the Arizona Court of Appeals 

Decision was not Unreasonable and did not Violate Federal Law

Assuming but not deciding that Petitioner’s probation revocation claims are 

timely, the Court need only address two claims: Grounds 6 and 7. 

For Ground 6, Petitioner claimed that the trial court erred when it incorrectly 

aggravated his sentence during his revocation proceedings. (Doc. 1-1 at 18; Doc. 7-1 at 

18). Evaluating the merits of this claim, the appellate court determined that the trial court 

committed no error when it used Petitioner’s failure to correct his behavior during his 

probationary period to increase his probation violation sentence. Gilardi, 2018 WL 

776018, at *2 ¶ 7. The appellate court stated that under state law, the trial court “is not 

precluded ‘from treating probationary failure as an aggravating factor.’” Id. (quoting 

State v. Baum, 893 P.2d 1301 (Ariz. App. 1995)). Furthermore, the appellate court noted 

that it did not impose an aggravated sentence under A.R.S. § 13-702(D); it was the 

maximum sentence permitted under the statutory sentencing range. Id. at *2, ¶ 9. 

Under A.R.S. § 13-702(D), a first-time stalking conviction is a class 3 felony, and 

ranges from 2.5 years’ minimum to 7 years’ maximum incarceration. An aggravated class 

3 felony under the statute is 8.75 years. So despite using the term “aggravated,” his 
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sentence was enhanced but not aggravated. When Petitioner’s probation was revoked, the 

court correctly sentenced him to seven years, which was on the high end, but not the 

aggravated sentence of 8.75 years’ incarceration. 

The trial court increased Petitioner’s sentence to the maximum because of 

Petitioner’s repeated failure to follow the terms of probation. This was not unreasonable, 

nor can Petitioner show that it was in violation of state or federal law. Therefore, any 

claim that Petitioner’s due process rights were violated because the aggravating factors 

were not proven beyond a reasonable doubt to a jury do not apply in this instance. 

For Ground 7, Petitioner claimed his counsel was ineffective during his probation 

revocation proceedings because counsel failed to object when the state court did not 

provide notice of its intent to aggravate his sentence. (Doc. 1-1 at 19). Petitioner further 

urges that counsel was ineffective for not introducing mental health issues as mitigating 

factors. (Doc. 1 at 10). 

The appellate court dismissed these claims, evaluating counsel’s actions under the 

Strickland standard. This standard requires petitioner prove (1) that counsel’s actions fell 

below objective standards of reasonableness, and (2) that claimant was prejudiced due to 

counsel’s actions. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Failure to 

meet either prong of this analysis “obviates the need to consider the other.” Rios v. 

Rocha, 299 F.3d 796, 805 (9th Cir. 2002). 

As explained previously, Petitioner’s sentence was not aggravated, and therefore 

no notice by the court was required. Failing to raise a meritless argument does not make 

counsel’s actions ineffective. Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985); 

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) ("A lawyer's zeal on behalf of his client 

does not require him to file a motion which he knows to be meritless on the facts and the 

law."). 

Petitioner also claims that his counsel was ineffective because he did not raise his 

mental health issues as mitigating factors. The appellate court noted that Petitioner was 

unable to show he was prejudiced by counsel’s failure to raise this issue because there 

was no indication that he had mental health issues either in the presentence report or his 
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psychological exam prior to the probation revocation proceedings. Gilardi, 2018 WL 

776018, at *3 ¶ 10. In addition, Petitioner had made no connection between his mental 

health issues and the crimes he committed. Id. The Court agrees with the appellate court 

that Petitioner cannot demonstrate he was prejudiced because the mental health 

information was not available at the time of revocation and he did not show that there 

was a causal connection between his mental state and the offenses. Furthermore, it is not 

likely that the mental history would have changed the outcome of the probation 

revocation proceedings.

 The state court used the proper standard to evaluate the ineffective assistance of 

counsel claim. Petitioner has not demonstrated counsel’s actions were subpar, or that he 

was prejudiced. Therefore, Petitioner has not demonstrated that he is entitled to relief 

under 28 U.S.C. § 2254(d) for Grounds 6 or 7. 

V. RECOMMENDATION 

The Magistrate Judge Recommends that the District Court enter an Order: 

1. FINDING that Petitioner’s § 2254 Petition is untimely as to the claims challenging 

his original sentence. 

2. FINDING that Petitioner’s § 2254 Petition challenging his probation revocation 

are non-meritorious. 

3. DENYING Petitioner’s Pro Se Petition Under 28 U.S.C § 2254 for a Writ of 

Habeas Corpus by a Person in State Custody (Non-Death Penalty). (Doc. 1). 

 Pursuant to 28 U.S.C. § 636(b) and the Federal Rules of Civil Procedure 72(b)(2), 

any party may serve and file written objections within fourteen (14) days after being 

served with a copy of this Report and Recommendation. A party may respond to another 

party’s objections within fourteen (14) days after being served with a copy of the 

objection. Filed objections should use the following case number: 

No. CV-17-00609-RM. 
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 Failure to timely object to the factual and legal determinations of the Magistrate 

Jude may waive Petitioner’s right to de novo review. The Clerk of Court shall send a 

copy of this Report and Recommendation to all parties. 

 Dated this 29th day of August, 2018.