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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Charlie L. Morgan,

Petitioner

-vsCharles Ryan, et al.,

Respondents.

CV-15-2646-PHX-SPL (JFM)

Report & Recommendation

on Petition for Writ of Habeas Corpus

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at Douglas,

Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 

2254 on February 23, 2016 (Doc. 8). On July 29, 2016 Respondents filed their Limited 

Answer (Doc. 19). Petitioner has not filed a Reply.

The Petitioner's Petition is now ripe for consideration. Accordingly, the 

undersigned makes the following proposed findings of fact, report, and recommendation 

pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 

of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 

Procedure. 

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

On May 25, 2015, Petitioner was indicted on the following charges: (1) ten 

counts of sale or transportation of marijuana (Counts 1, 2, 3, 4, 7, 9, 11, 12, 15, 17); (2) 

seven counts of sale or transportation of dangerous drugs (Counts 5, 6, 8, 10, 13, 14, 16); 

(3) one count of conspiracy to commit armed robbery (Count 18). Other co-indictees 

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were also named, and included in additional counts. (Exhibit A, Indictment.) (Exhibits 

to the Answer, Doc. 19, are referenced herein as “Exhibit ___.”) 

Petitioner eventually entered into a written Plea Agreement (Exhibit C), wherein 

he agreed to plead guilty to one count of conspiracy to commit armed robbery, with a 

stipulated sentence of 7 to 13 years. Petitioner entered his plea pursuant to the Plea 

Agreement on January 23, 2014. (Exhibit D, R.T. 1/23/14.) 

A Presentence Investigation Report (Exhibit B) was prepared, recommending 

imposition of the presumptive sentence, to be served consecutively to a simultaneously

recommended sentence on other drug charges. On April 3, 2014, Petitioner was 

sentenced to seven years on the charge, with the sentence to be concurrent with the 

simultaneously imposed sentence of one year in the other case. (Exhibit E, R.T. 4/3/14 

at 14-15.) The court found aggravating factors to include: pecuniary gain, multiple acts, 

prior felony convictions, accomplices, and major participant. (Id. at 13.) The court 

found mitigating factors to include: strong family support, prior felonies were old, and 

no weapon used. (Id. at 13-14.)

Petitioner signed a Notice of Rights of Review (Exhibit F) outlining his limited 

right to review through post-conviction relief.

B. PROCEEDINGS ON DIRECT APPEAL

Petitioner did not file a direct appeal. (Amend. Petition, Doc. 8 at 2; Exhibit G, 

Trial Court Docket (reflecting no post sentencing filings by Petitioner, Defendant “2”).)

Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. 

See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 

614, 616 (1995).

C. PROCEEDINGS ON POST-CONVICTION RELIEF

Petitioner did not institute a post-conviction relief proceeding. (Amend. Pet., 

Doc. 8 at 3-4; Exhibit G, Trial Court Docket (reflecting no post sentencing filings by 

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Petitioner, Defendant “2”).)

D. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his original Petition for 

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (dated December 22, 2015) on

December 28, 2015 (Doc. 1). The Court dismissed the original Petition with leave to 

amend, for failure to identify any constitutional provisions or rights violated. (Order 

2/1/16, Doc. 7 at 2.)

Petitioner filed his Amended Petition for Writ of Habeas Corpus pursuant to 28 

U.S.C. § 2254 (dated February 15, 2016) on February 23, 2016 (Doc. 8). Petitioner’s 

Amended Petition asserts the following four grounds for relief:

(1) Petitioner alleges that his Fourteenth Amendment rights were 

violated because he was entrapped when the undercover police 

officer “enticed [Petitioner] by starting the entire situation”; 

(2) Petitioner alleges that his Sixth and Eighth Amendment rights 

were violated when his attorney refused to go to trial and because he 

was subjected to “entrapment by estoppel” when “[the] officer 

brought this idea over [and] over to [Petitioner] until they got 

[Petitioner] to go along with them”; 

(3) Petitioner alleges that his Fifth, Sixth, Eighth, and Fourteenth 

Amendment rights were violated because his attorney provided 

ineffective assistance when he agreed to a plea bargain and failed to 

investigate the “entrapment or entrapment by estoppel” defenses; 

and 

(4) Petitioner alleges that his Sixth and Fourteenth Amendment 

rights were violated because he was not provided a copy of the 

presentence report to review.

(Order 3/3/16, Doc. 9 at 2.)

Petitioner seeks to excuse his failure to exhaust state remedies based on the lack 

of advice from counsel (id. at 5), and to excuse his failure to timely file the instant 

Petition by asserting that he just learned of the availability of habeas review (id. at 11).

Response - On July 29, 2016, Respondents filed their Limited Answer

(“Answer”) (Doc. 19). Respondents argue that the Amended Petition is barred by the 

habeas statute of limitations, Petitioner has procedurally defaulted on his state remedies, 

and Ground 4 is not cognizable on habeas review. 

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Reply – In the Order filed August 5, 2016, the Court set a date certain of 

September 6, 2016 as the deadline for a reply by Petitioner. (Order 8/5/16, Doc. 20 at 2.) 

Petitioner has not replied or sought an extension of time to reply, and the deadline has 

passed.

III. APPLICATION OF LAW TO FACTS

A. TIMELINESS

Respondents argue that Petitioner’s one year habeas statute of limitations expired 

on April 3, 2015, and that the current Amended Petition is over 10 months late. 

(Answer, Doc. 19 at 5-7.) 

1. One Year Limitations Period

As part of the Anti-Terrorism and Effective Death Penalty Act of 1996 

("AEDPA"), Congress provided a 1-year statute of limitations for all applications for 

writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and 

sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one 

year limitations period are barred and must be dismissed. Id.

2. Commencement of Limitations Period

The one-year statute of limitations on habeas petitions generally begins to run on 

"the date on which the judgment became final by conclusion of direct review or the 

expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).1 For an 

Arizona noncapital pleading defendant, the conviction becomes “final” at the conclusion 

of the first “of-right” post-conviction proceeding under Rule 32. “Arizona's Rule 32 ofright proceeding for plea-convicted defendants is a form of direct review within the 

meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 

 

1

Later commencement times can result from a state created impediment, newly 

recognized constitutional rights, and newly discovered factual predicates for claims. See

28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.

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2007). “To bring an of-right proceeding under Rule 32, a plea-convicted defendant must 

provide to the Arizona Superior Court, within 90 days of conviction and sentencing in 

that court, notice of his or her intent to file a Petition for Post-Conviction Review.” Id. at 

715 (citing Ariz. R.Crim. P. 32.4(a)). 

Petitioner did not seek such review. Respondents thus argue that his date of 

sentencing, April 3, 2014, marks the finality of his conviction. (Answer, Doc. 19 at 5-6.) 

However, for purposes of the habeas statute of limitations a conviction does not become 

final until “expiration of the time for seeking [direct] review.” 28 U.S.C. § 

2244(d)(1)(A). Petitioner had through Wednesday, July 2, 2014, 90 days after 

sentencing, to file his PCR notice. Accordingly, his conviction became final on July 2, 

2014, when his right to seek review expired.

His one year habeas limitations period began running thereafter, and with no 

tolling would have expired on Thursday, July 2, 2015. 

3. Timeliness Without Tolling

Petitioner’s Amended Petition (Doc. 8) was filed on February 23, 2016. 

However, his original Petition (Doc. 1) was filed on December 28, 2015. 

Applications for habeas corpus "may be amended or supplemented as provided in 

the rules of procedure applicable to civil actions." 28 U.S.C. § 2242. Similarly, Rule 11 

of the Rules Governing Section 2254 Cases provides that "[t]he Federal Rules of Civil 

Procedure, to the extent that they are not inconsistent with these rules, may be applied,

when appropriate, to the petitions filed under these rules." Rule 15(c), Federal Rules of 

Civil Procedure provides that an “amendment of a pleading relates back to the date of the 

original pleading when . . . (2) the claim or defense asserted in the amended pleading 

arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth 

in the original pleading.” However, an amended petition “does not relate back (and 

thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief 

supported by facts that differ in both time and type from those the original pleading set 

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forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). The original and amended claims 

must, instead, be “tied to a common core of operative facts.” Id. at 664. 

Because it does not affect the outcome, the undersigned assumes for purposes of 

this Report & Recommendation, in Petitioner’s favor, that Petitioner’s claims in his 

Amended Petition arise from the same core of operative facts as his original Petition, and 

thus relate back to filing of the original Petition. 

Although Petitioner’s original Petition was filed by the Clerk on December 28, 

2015, it is dated December 22, 2015. (Doc. 1 at 11.) “In determining when a pro se

state or federal petition is filed, the ‘mailbox’ rule applies. A petition is considered to be 

filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. 

Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Apart from the date of the Petition, Petitioner 

proffers nothing to suggest that his Petition was delivered to prison officials for mailing, 

or that it was delivered prior to its filing date. Because it would be reasonable to assume 

that Petitioner did deliver his petition to prison officials for mailing, and to assume that it 

was done prior to the filing date, and because it does not affect the outcome, the 

undersigned presumes (in Petitioner’s favor) that his Petition was delivered to prison 

officials for mailing on the date it was signed, and that it should be deemed “filed” as of 

that date.

As determined in subsection (1) above, without any tolling Petitioner’s one year 

habeas limitations period expired no later than July 2, 2015, making his December 22, 

2015 Petition over five months delinquent.

4. Statutory Tolling 

The AEDPA provides for tolling of the limitations period when a "properly filed 

application for State post-conviction or other collateral relief with respect to the pertinent 

judgment or claim is pending." 28 U.S.C. § 2244(d)(2). This provision only applies to 

state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).

Here, Petitioner has never filed a State application for post-conviction relief or 

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other collateral relief, and thus is not entitled to any statutory tolling. Consequently, his 

habeas limitations period expired on July 2, 2015, and Petitioner’s habeas petition was 

over five months delinquent.

5. Equitable Tolling

"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is 

available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's 

control make it impossible to file a petition on time' and ‘the extraordinary circumstances 

were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 

2003). 

To receive equitable tolling, [t]he petitioner must establish two 

elements: (1) that he has been pursuing his rights diligently, and (2) 

that some extraordinary circumstances stood in his way. The 

petitioner must additionally show that the extraordinary 

circumstances were the cause of his untimeliness, and that the 

extraordinary circumstances ma[de] it impossible to file a petition 

on time.

Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations 

omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] 

is very high, lest the exceptions swallow the rule.’ ” Miranda v. Castro,292 F.3d 1063, 

1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.).

Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace 

v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th

Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations 

on habeas petitions, but the petitioner bears the burden of showing that equitable tolling 

is appropriate.”).

Apart from his pro se status and ignorance of the availability of habeas review, 

Petitioner does not proffer any grounds for equitable tolling, and the undersigned finds 

none.

“It is clear that pro se status, on its own, is not enough to warrant equitable 

tolling.” Roy v. Lampert, 465 F.3d 964, 970 (9th Cir. 2006). A prisoner's “proceeding 

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pro se is not a ‘rare and exceptional’ circumstance because it is typical of those bringing 

a § 2254 claim.” Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000). See also 

Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“a pro se petitioner's lack of 

legal sophistication is not, by itself, an extraordinary circumstance warranting equitable 

tolling”). And, "ignorance of the law, even for an incarcerated pro se petitioner, 

generally does not excuse prompt filing." Fisher v. Johnson, 174 F.3d 710, 714 (5th 

Cir.1999). 

Moreover, Petitioner proffers nothing to show that he was diligent in pursuing his 

habeas rights in light of his disabilities.

Accordingly, the undersigned finds no basis for equitable tolling of the statute of 

limitations.

6. Actual Innocence 

To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 

2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas 

petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 133 

S.Ct. 1924, 1935 (2013). To invoke this exception to the statute of limitations, a 

petitioner “’must show that it is more likely than not that no reasonable juror would have 

convicted him in the light of the new evidence.’” Id. at 1935 (quoting Schlup v. Delo, 

513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies 

“only when a petition presents ‘evidence of innocence so strong that a court cannot have 

confidence in the outcome of the trial unless the court is also satisfied that the trial was 

free of nonharmless constitutional error.’ ” Id. at 1936 (quoting Schlup, 513 U.S. at 

316). 

Petitioner makes no such claim of actual innocence in this proceeding. At most, 

Petitioner raises assertions of entrapment. Assuming arguendo that a defense of 

entrapment could, if adequately proven, establish a showing of actual innocence, 

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Petitioner offers no new, reliable evidence to support that contention. 2 

Under Arizona law, “to assert an entrapment defense, a defendant must admit the 

substantial elements of the charged offense, [Ariz. Rev. Stat.] § 13–206(A), and must 

prove each of the following by clear and convincing evidence: (1) the idea of committing 

the offense originated with law enforcement officers or their agents and not with the 

defendant; (2) officers or their agents ‘urged and induced’ the defendant to commit the 

offense; and, (3) the defendant ‘was not predisposed to commit the type of offense 

charge’” before being urged and induced by the officers or their agents to commit it, § 

13–206(B).” State v. Williamson, 236 Ariz. 550, 562–63, ¶¶ 41-42, 343 P.3d 1, 13–14 

(App. 2015). Thus, “[e]ntrapment does not exist where law enforcement officers have 

merely afforded an opportunity for a predisposed person to commit a crime.” State v. 

Gessler, 142 Ariz. 379, 382, 690 P.2d 98, 101 (App.1984).

Here, Petitioner simply offers the conclusory allegations that “the police...enticed 

me by starting the entire situation the officers supplied everything needed to commit the 

offenses they supplied mask gloves, bags, zip ties, and took me to the location of the 

crime and put gas in the vehicle to get me [there].” (Amend. Pet., Doc. 8 at 6.) 

Petitioner proffers nothing to show that the idea of the offense (as opposed to the 

“situation”) originated with police, or that he was not predisposed to committing the 

offense.

Moreover, Petitioner pled guilty to the offense of conspiracy to commit armed 

robbery. As recognized in Gessler, even if law enforcement provided all of the 

ingredients of the substantive offense (in this case, armed robbery), entrapment is not 

shown when the defendant has committed the separate offense of conspiring with nonlaw enforcement personnel to commit the offense. Gessler, 142 Ariz. at 384, 690 P.3d at 

 

2

"In cases where the Government has forgone more serious charges in the course of 

plea bargaining, petitioner's showing of actual innocence must also extend to those 

charges." Bousley v. U.S., 523 U.S. 614, 624 (1998). The undersigned assumes 

arguendo that the dismissed charges of sale or transportation of marijuana and dangerous 

drugs would not qualify as “more serious charges,” although they might, particularly if 

considered cumulatively.

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103. Petitioner admitted at his plea proceedings that “the conspiracy was really, as 

alleged here, not with the undercovers, but with the other individuals as set forth in the 

indictment.” (Exhibit D, R.T. 1/23/14 at 16.) Petitioner proffers nothing to show that he 

was entrapped into the conspiracy with his co-defendants and others, as opposed to the 

underlying armed robbery.

Thus, Petitioner’s allegations would not be sufficient to establish entrapment, and 

thus to establish his actual innocence.

7. Summary re Statute of Limitations

Petitioner’s one year habeas limitations period commenced running on July 3, 

2014, and expired on July 2, 2015. Adopting arguendo assumptions in Petitioner’s favor 

regarding relation back of his amended petition and applicability of the prison mailbox 

rule, Petitioner’s petition can be deemed filed no earlier than December 22, 2015, 

making his Petition more than five months delinquent. Petitioner has shown no basis for 

statutory tolling, and no basis for equitable tolling or actual innocence to avoid the 

effects of his delay. Consequently, the Petition must be dismissed with prejudice.

B. OTHER DEFENSES

Because the undersigned concludes that Petitioner’s Petition is plainly barred by 

the statute of limitations, Respondents other defenses are not reached.

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 

that in habeas cases the “district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant.” Such certificates are required in

cases concerning detention arising “out of process issued by a State court”, or in a 

proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 

U.S.C. § 2253(c)(1). 

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Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges 

detention pursuant to a State court judgment. The recommendations if accepted will 

result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 

decision on a certificate of appealability is required. 

Applicable Standards - The standard for issuing a certificate of appealability 

(“COA”) is whether the applicant has “made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id.

Standard Not Met - Assuming the recommendations herein are followed in the 

district court’s judgment, that decision will be on procedural grounds.. Under the 

reasoning set forth herein, jurists of reason would not find it debatable whether the 

district court was correct in its procedural ruling. 

Accordingly, to the extent that the Court adopts this Report & Recommendation 

as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Petitioner's Amended Petition 

for Writ of Habeas Corpus, filed February 23, 2016 (Doc. 8) be DISMISSED WITH 

PREJUDICE.

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IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 

and recommendations are adopted in the District Court’s order, a Certificate of 

Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

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. 

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 

shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See also Rule 8(b), Rules 

Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to timely file objections to any 

findings or recommendations of the Magistrate Judge will be considered a waiver of a 

party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 

right to appellate review of the findings of fact in an order or judgment entered pursuant 

to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-

47 (9th Cir. 2007). 

Dated: November 1, 2016

15-2646r RR 16 10 31 on HC.docx

James F. Metcalf

United States Magistrate Judge

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