1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Thomas M. Lanfor,

Petitioner,

v. 

Charles Ryan, et al.,

Respondents.

No. CV-15-01832-PHX-ROS (ESW)

REPORT AND 

RECOMMENDATION

TO THE HONORABLE ROSLYN O. SILVER, UNITED STATES SENIOR 

DISTRICT JUDGE:

Pending before the Court is Thomas M. Lanfor’s (“Petitioner”) Petition under 28 

U.S.C. § 2254 for a Writ of Habeas Corpus (the “Petition”) (Doc. 1). Respondents have 

filed their Answer (Doc. 10), to which Petitioner has not replied. The matter is deemed 

submitted for consideration. 

Petitioner raises two grounds for relief in the Petition. The undersigned finds that 

Ground One does not present a cognizable habeas claim and Ground Two is procedurally 

defaulted. It is therefore recommended that the Petition be denied and dismissed with 

prejudice. 

I. BACKGROUND 

A. Convictions and Sentences

On February 11, 1998, Petitioner signed a plea agreement in which Petitioner 

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 1 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

agreed to plead guilty to one count of child molest and one count of attempted child 

molest. (Doc. 10-1 at 9-10). The parties stipulated that subject to the trial court’s 

approval, Petitioner’s sentence for the child molest count shall be capped at the 

presumptive prison term of seventeen years and Petitioner shall be placed on lifetime 

probation for the attempted child molest count. (Id. at 9). 

On March 12, 1998, the trial court found that Petitioner knowingly, intelligently, 

and voluntarily entered his guilty pleas. (Id. at 44). The trial court sentenced Petitioner 

to a twelve-year term of incarceration for the child molest count. (Id. at 44-45).

Regarding the attempted child molest count, the trial court suspended the imposition of 

sentence and placed Petitioner on a term of lifetime probation. (Id. at 45-46). 

B. Revocation of Probation

On September 8, 2009, Petitioner was discharged from prison, thereby 

commencing his term of lifetime probation for the attempted child molest count. (Doc. 

10-3 at 183). On March 29, 2012, a probation officer alleged that Petitioner violated a 

number of the conditions of his probation and petitioned the trial court to revoke 

Petitioner’s probation. (Doc. 10-1 at 57). Petitioner admitted to violating the condition

pertaining to curfew. (Id.; Doc. 10-3 at 185). At the May 18, 2012 disposition hearing, 

the trial court placed Petitioner on intensive probation. (Doc. 10-3 at 188-91).

In December 2012, a probation officer filed a second Petition to Revoke 

Probation, alleging that Petitioner committed additional probationary condition

violations. (Doc. 10-1 at 55). Petitioner admitted to failing to follow his Intensive 

Probation Supervision schedule. (Doc. 10-2 at 87-90). At the December 19, 2012 

disposition hearing, the trial court revoked Petitioner’s probation and sentenced Petitioner 

to 2.25 years in prison. (Doc. 10-1 at 61; Doc. 10-2 at 122-23). 

On January 31, 2013, the State filed a “Motion to Reconsider and Correct Prison 

Sentence,” arguing that the 2.25 prison term was outside the sentencing range mandated

by Arizona law. (Doc. 10-1 at 73-76). At oral argument on the State’s Motion to 

Reconsider, the trial court overruled Petitioner’s objection to the timeliness of the 

- 2 -

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 2 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

proceeding. (Id. at 111-12). On February 19, 2003, the trial court found that the 

December 19, 2012 judgment imposing a sentence of 2.25 years violated Arizona law. 

(Id. at 112-13). In addition, the trial court found that the sentence was imposed in a 

manner that violated Petitioner’s due process rights because Petitioner was not advised of 

the correct sentencing range that may be imposed if his probation was revoked. (Id.). 

The trial court vacated the finding that Petitioner committed a probationary condition

violation pursuant to Petitioner’s admission and the sentence of imprisonment entered at 

the December 19, 2012 disposition hearing. (Id. at 114). The trial court denied as moot 

the State’s Motion to Reconsider. (Id.). The trial court set a Witness Violation Hearing 

on March 22, 2013. (Id. at 116).

At the March 22, 2013 hearing, the trial court found that Petitioner violated the 

condition of probation requiring Petitioner to follow the Intensive Probation Supervision 

schedule. (Doc. 10-3 at 52). At the April 17, 2013 disposition hearing, the trial court 

revoked Petitioner’s probation and sentenced Petitioner to ten years in prison. (Doc. 10-2 

at 3-9).

C. Direct Appeal and Post-Conviction Relief Proceedings

Petitioner petitioned the Arizona Court of Appeals for review of the trial court’s 

vacation of the December 19, 2012 judgment. (Id. at 11-24). Petitioner argued that the 

judgment was vacated after the sixty day time frame set forth in Arizona Rule of 

Criminal Procedure 24.3, which governed the State’s “Motion for Reconsideration and 

Correct Prison Sentence.” (Id. at 17-19). In its April 15, 2014 ruling, the Arizona Court 

of Appeals recounted that Petitioner “was sentenced on December 19, 2012. His 

sentence was vacated 62 days later—on February 19, 2013. The 60th day, though, fell on 

a Sunday, and the 61st day was the third Monday in February—a legal holiday.” (Id. at 

63). The Court of Appeals then cited Arizona Rule of Criminal Procedure Rule 1.3(a), 

which states:

In computing any period of time of more than 24 hours, 

prescribed by these rules . . . [t]he last day of the period so 

computed shall be included, unless it is a Saturday, Sunday or 

- 3 -

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 3 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

legal holiday, in which case the period shall run until the end 

of the next day which is neither a Saturday, Sunday nor a 

legal holiday.

(Doc. 10-2 at 63-64). The Court of Appeals explained that Rule 1.3(a) “applies to any 

period of time exceeding 24 hours prescribed by the Arizona Rules of Criminal 

Procedure, which encompasses the 60-day deadline in Rule 24.3.” (Id. at 64). The Court 

of Appeals noted that Petitioner “does not deny that the 60th day and 61st and Correct 

Prison Sentence days fell on a Sunday and legal holiday, respectively.” (Id.). Based on 

the above, the Arizona Court of Appeals held that the trial court timely vacated the 

December 19, 2012 judgment. (Id. at 61, 64). On September 23, 2014, the Arizona 

Supreme Court denied Petitioner’s request for further review. (Id. at 66-79, 81).

On November 14, 2014, Petitioner filed a Notice of Post-Conviction Relief 

(“PCR”). (Doc. 10-3 at 131-33). The trial court allowed the PCR proceeding to move 

forward only as to the April 17, 2013 probation revocation and appointed Petitioner PCR 

counsel. (Id. at 135-36). PCR counsel was unable to find a colorable claim for relief. 

(Id. at 138-39). In August 2015, Petitioner filed a pro se PCR Notice and Petition. (Id. at 

141-59). Petitioner claimed that (i) his conviction for attempted child molest violated the 

double jeopardy clause of the U.S. Constitution; (ii) Petitioner’s attorney “induced him to 

plead guilty . . . based on false information that he would otherwise be subject for the 

same offense to be ten (10) times put in jeopardy”; and (iii) all of his defense attorneys 

were “ineffective when they all failed to raise the multiplicity issue and the wrongful 

conviction for attempted molestation of a child and the illegal sentence of lifetime 

probation, which are void.” (Id. at 153, 155-56). The PCR Petition was pending when

Respondents filed their Answer, but a review of the trial court’s docket indicates that the 

PCR Petition was dismissed on January 15, 2016. (Attachment 1).

On September 14, 2015, Petitioner initiated this federal habeas proceeding. (Doc. 

1). Respondents do not argue that the Petition is untimely. (Doc. 10). 

- 4 -

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 4 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

II. DISCUSSION

A. Ground One is Not a Cognizable Federal Habeas Claim

Federal law “unambiguously provides that a federal court may issue a writ of 

habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of 

the Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 

1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). To plead a cognizable federal 

habeas claim, a petitioner must set forth in his or her petition the facts supporting the 

specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. 

“‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point 

to a ‘real possibility of constitutional error.’” Advisory Committee Note to Rule 4, foll. 

28 U.S.C. § 2254 (citation omitted); see also Mayle v. Felix, 545 U.S. 644, 655 

(2005) (noting that the rules governing pleading for Section 2254 habeas petitions is 

“more demanding” than the notice pleading allowed under Fed. R. Civ. P. 8); Wacht v. 

Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (concluding that a habeas petitioner 

“failed to satisfy the specificity requirement of § 2254 pleadings or to show that there is a 

‘real possibility’ of constitutional error” by “merely alleg[ing] that he ‘ . . . was not 

informed of the consequences of his plea. . . .’”). 

In Ground One of the Petition, Petitioner argues that “[u]nder Arizona law the 

[trial] court had 60 days to re-sentence me if they believed my sentence was illegal. As it 

. . . took 62 days to re-sentence me . . . this action violates my rights under the 14th

amendment and amounts to cruel and unusual punishment under the 8th amendment of the 

United States Constitution.” (Doc. 1 at 6). The undersigned finds that Ground one fails 

to sufficiently set forth a cognizable federal habeas claim that Petitioner is in custody in 

violation of federal law.

Further, in reviewing a federal habeas petition, a district court cannot reexamine 

state court determinations on state law questions. Estelle v. McGuire, 502 U.S. 62, 67-68 

(1991). A habeas petitioner may not “transform a state-law issue into a federal one 

merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 

- 5 -

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 5 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(9th Cir. 1996). 

The Arizona Court of Appeals held that Arizona Rule of Criminal Procedure 1.3 

applies to the 60-day deadline in which the trial court may vacate the entry of judgment 

and sentence. (Doc. 10-3 at 175). The 60th day following entry of the December 19, 

2012 judgment was February 17, 2013. However, February 17, 2013 was a Sunday and 

Monday, February 18, 2013 was a legal holiday. (Id.). The Arizona Court of Appeals 

determined that pursuant to Rule 1.3, the deadline for vacating the judgment fell on 

Tuesday, February 19, 2013. Because the trial court vacated the judgment on February 

19, 2013, the state appellate court determined that the trial court’s corrective order was 

timely under Arizona law. That determination is binding on this Court. See Bradshaw v. 

Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state court's interpretation of state law 

. . . binds a federal court sitting in habeas corpus.”). 

For the above reasons, the undersigned recommends that the Court dismiss 

Ground One of the Petition (Doc. 1).

B. Ground Two is Procedurally Defaulted

In Ground Two, Petitioner argues that the ten-year sentence imposed on April 17, 

2013 following the revocation of Petitioner’s probation “amounts to cruel and unusual 

punishment under the United States Constitution.” Assuming arguendo that Ground Two 

sufficiently alleges a cognizable federal habeas claim, Petitioner failed to present the 

claim in state court. (Doc. 10-2 at 11-24; Doc. 10-3 at 146-59). Moreover, Petitioner 

would be precluded from post-conviction relief on Ground Two under Arizona Rule of 

Criminal Procedure 32. Arizona Rules of Criminal Procedure 32.2(b) and 32.4(a) do not 

bar untimely claims that fall within the categories set forth in Rule 32.1(d) through (h):

d. The person is being held in custody after the sentence 

imposed has expired;

e. Newly discovered material facts probably exist and such 

facts probably would have changed the verdict or 

sentence. Newly discovered material facts exist if:

(1). The newly discovered material facts were 

discovered after the trial.

(2). The defendant exercised due diligence in 

- 6 -

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 6 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

securing the newly discovered material facts.

(3). The newly discovered material facts are not 

merely cumulative or used solely for 

impeachment, unless the impeachment evidence 

substantially undermines testimony which was 

of critical significance at trial such that the 

evidence probably would have changed the 

verdict or sentence.

f. The defendant’s failure to file a notice of post-conviction

relief of-right or notice of appeal within the prescribed 

time was without fault on the defendant’s part; or

g. There has been a significant change in the law that if 

determined to apply to defendant's case would probably 

overturn the defendant's conviction or sentence; or

h. The defendant demonstrates by clear and convincing 

evidence that the facts underlying the claim would be 

sufficient to establish that no reasonable fact-finder would 

have found defendant guilty of the underlying offense 

beyond a reasonable doubt, or that the court would not 

have imposed the death penalty.

Petitioner does not assert that any of the above exceptions apply to his claims. 

Nor does it appear that such exceptions would apply. Ground Two is deemed 

procedurally defaulted. Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (a claim is 

procedurally defaulted “if the petitioner failed to exhaust state remedies and the court to 

which the petitioner would be required to present his claims in order to meet the 

requirement would now find the claims procedurally barred”) (quoting Coleman, 501 

U.S. at 735 n.1)). 

The merits of a habeas petitioner’s procedurally defaulted claims are to be 

reviewed if the petitioner (i) shows cause for the default and actual prejudice as a result 

of the alleged violation of federal law or (ii) shows that the failure to consider the federal 

claim will result in a fundamental miscarriage of justice. McKinney v. Ryan, 730 F.3d 

903, 913 (9th Cir. 2013). Petitioner’s status as a pro se litigant does not exempt 

Petitioner from the “cause and prejudice” standard. Hughes v. Idaho State Board of 

Corrections, 800 F.2d 905, 908 (9th Cir. 1986). Petitioner has not shown that an 

- 7 -

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 7 of 9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

objective factor external to Petitioner impeded with his efforts to present his procedurally 

defaulted claims in a properly filed PCR Petition. Petitioner has therefore failed to show 

cause for his procedural defaults. Where a petitioner fails to establish cause, the Court 

need not consider whether the petitioner has shown actual prejudice resulting from the 

alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). 

Accordingly, the undersigned finds that Petitioner has not satisfied the “cause and 

prejudice” exception to excuse his procedural defaults.

To satisfy the fundamental miscarriage of justice exception, Petitioner must show 

that “a constitutional violation has resulted in the conviction of one who 

is actually innocent.” Schlup, 513 U.S. at 327. Petitioner does not assert that he is 

actually innocent. After reviewing the record, the undersigned finds no evidence 

showing that a constitutional violation has probably resulted in the conviction of an 

innocent man. The undersigned thus finds the miscarriage of justice exception 

inapplicable to this case.1 Wood, 693 F.3d at 1117. 

Because the undersigned finds that Petitioner’s procedural default is not excused, 

it is recommended that the Court dismiss Ground Two of the Petition (Doc. 1).

III. CONCLUSION

Based on the foregoing reasons, the undersigned recommends that the Court deny 

and dismiss with prejudice the Petition (Doc. 1) on the basis that it is time-barred.

Accordingly,

IT IS RECOMMENDED that the Petition (Doc. 1) be DENIED and 

DISMISSED WITH PREJUDICE.

1 In addition, it is unclear “whether the Schlup actual innocence gateway always applies to petitioners who plead guilty.” Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th 

Cir. 2007) (“We are aware of a potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty (or no contest) pleas. . . . For purposes of our analysis, however, we assume without 

deciding that the actual innocence gateway is available to [the plea-convicted habeas 

petitioner].”). Decisions in which the Ninth Circuit or United States Supreme Court have 

considered gateway claims of actual innocence in a plea context involved subsequent 

case law that arguably rendered the defendant’s acts non-criminal. See, e.g. Bousley v. United States, 523 U.S. 614, 621-23 (1998); Vosgien v. Persson, 742 F .3d 1131, 1134-35 

(9th Cir. 2013); U.S. v. Avery, 719 F.3d 1080, 1084-85 (9th Cir. 2013).

- 8 -

 

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 8 of 9
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave 

to proceed in forma pauperis on appeal be denied because dismissal of the Petition is 

justified by a plain procedural bar. 

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 

should not be filed until entry of the District Court’s judgment. The parties shall have 

fourteen days from the date of service of a copy of this recommendation within which to 

file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 

6, 72. Thereafter, the parties have fourteen days within which to file a response to the 

objections. Failure to file timely objections to the Magistrate Judge’s Report and 

Recommendation may result in the acceptance of the Report and Recommendation by the 

District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 

1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the 

Magistrate Judge may be considered a waiver of a party’s right to appellate review of the 

findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s 

recommendation. See Fed. R. Civ. P. 72. 

Dated this 31st day of August, 2016. 

- 9 - 

Case 2:15-cv-01832-ROS Document 11 Filed 08/31/16 Page 9 of 9