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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Charles Edward Byrd, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-2263-PHX-NVW (DKD)

REPORT AND RECOMMENDATION 

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

 Charles Edward Byrd filed a Petition for Writ of Habeas Corpus challenging his 

convictions and sentences in Maricopa County Superior Court for one count of 

conspiracy to commit possession of dangerous drugs for sale. As explained below, the 

Court recommends that his Petition be denied and dismissed with prejudice. 

BACKGROUND 

Following his October 2012 indictment, Byrd entered a plea of guilty in Maricopa 

County Superior Court to one count of conspiracy to commit possession of dangerous 

drugs for sale with one historical prior felony. (Doc. 13, Exs. A, C, D) When Byrd 

entered his plea of guilty, Byrd was represented by counsel and the Court informed him 

of his pertinent constitutional rights and his rights of review. (Doc. 13, Ex. D) On 

October 16, 2014, Byrd was sentenced to an aggravated sentence of 10 years to be 

followed by a term of community supervision. (Doc. 13, Ex. F) 

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 On November 9, 2015, Byrd filed a Petition for Writ of Habeas Corpus in this 

Court raising four related arguments about the underlying stop, search, and seizure that 

led to his conviction. (Doc. 1) Respondents argue that all of these claims are 

unexhausted and procedurally barred and, moreover, cannot be considered under habeas 

review. (Doc 13) In reply, Byrd reargues that his constitutional rights were violated. 

(Doc. 14) 

EXHAUSTION OF REMEDIES & PROCEDURAL DEFAULT

 Exhaustion of Remedies. A state prisoner must properly exhaust all state court 

remedies before this Court can grant an application for a writ of habeas corpus. 28 

U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. 

Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies 

by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate 

manner. O’Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 

F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). To 

be fairly presented, a claim must include a statement of the operative facts and the 

specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. 

Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 365-66. 

 Procedural Default. A claim can also be subject to an express or implied 

procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express 

procedural bar exists if the state court denies or dismisses a claim based on a procedural 

bar “that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis 

for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989). Stewart v. Smith, 

536 U.S. 856, 860 (2002) (Arizona’s “Rule 32.2(a)(3) determinations are independent of 

federal law because they do not depend upon a federal constitutional ruling on the 

merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist 

when a state strictly or regularly follows its procedural rule). See also Ylst v. 

Nunnemaker, 501 U.S. 797, 801 (1991); Robinson, 595 F.3d at 1100. 

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 An implied procedural bar exists if a claim was not fairly presented in state court 

and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 

298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 

975, 987 (9th Cir. 2002); Poland v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. 

Lewis, 874 F.2d 599, 602 (9th Cir. 1989).

 This Court can review a procedurally defaulted claim if the petitioner can 

demonstrate either cause for the default and actual prejudice to excuse the default, or a 

miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 

(1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986);

States v. Frady, 456 U.S. 152, 167-68 (1982). 

BYRD’S CLAIMS ARE BARRED 

 Byrd did not exhaust any of the claims in his habeas petition and an implied 

procedural bar now exists to prevent him from doing so. To meet the exhaustion 

requirement, Byrd needed to fairly present his claims to the Arizona Court of Appeals by 

providing the facts underlying his claim and the federal basis of those claims. Byrd never 

filed anything in the Arizona Court of Appeals and, therefore, his claims are not 

exhausted. 

 In addition, Byrd’s claims are now subject to an implied procedural bar because 

his claims were not fairly presented in state court and no state remedies remain available 

to him because he is now precluded or time-barred from raising his claims in a successive 

and untimely Rule 32 petition under Arizona Rules of Criminal Procedure 32.1(d)-(h), 

32.2(a) & (b), or 32.4(a). 

Byrd has not demonstrated either cause for the default and actual prejudice to 

excuse the default, or a miscarriage of justice. Byrd first claims that his settlement 

conference judge told him that he could get additional prison time if he filed for postconviction relief. (Doc. 1 at 5) This misstatement of the law was countered by the 

advisories given to Byrd during the entry of his plea and does not explain or justify his 

failure to initiate post-conviction proceedings. 

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 He has also presented his trial counsel’s motion to suppress and it appears that he 

is attempting to re-litigate that motion in this proceeding. (Doc. 14, Ex. B) The Court’s 

denial of this motion is not a miscarriage of justice such that the Court can review his 

procedurally defaulted claims. 

 Finally, the Court notes that even if Byrd had exhausted his claims in the state 

court system, this Court would not be able to “grant federal habeas relief on the Fourth 

Amendment issue.” Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005). 

 IT IS THEREFORE RECOMMENDED that Charles Edward Byrd’s petition 

for writ of habeas corpus be denied and dismissed with prejudice.

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 and jurists of reason would not find the ruling 

debatable. 

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

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 

the parties have fourteen days within which to file a response to the objections. Failure 

timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 

be considered a waiver of a party’s right to appellate review of the findings of fact in an 

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order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 

72, Federal Rules of Civil Procedure. 

 Dated this 5th day of April, 2016. 

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