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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Brandon Williams Tsosie, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-16-08003-PCT-PGR (JZB)

REPORT 

AND RECOMMENDATION 

 TO THE HONORABLE PAUL G. ROSENBLATT, SENIOR UNITED STATES 

DISTRICT JUDGE: 

 Petitioner Brandon Williams Tsosie 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’s post-conviction proceedings concluded on July 30, 2012. The statute 

of limitations on Petitioner’s habeas claims expired one year later on July 31, 2013. The 

instant Petition was filed on January 5, 2016. Equitable tolling is not merited because 

Petitioner’s claim that he did not “understand how to fill out” a petition does not justify 

his delay of two years and five months. For the reasons that follow, the Court concludes 

that Petitioner’s claims are untimely. Therefore, the Court will recommend that the 

Petition be denied and dismissed with prejudice. 

II. Factual and Procedural Background 

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a. Facts and Proceedings 

 The Presentence Report includes a summary of the underlying facts of 

Petitioner’s offense: 

 On or about December 17, 2007, at approximately 

8:43 p.m., Holbrook police officers were dispatched to 208 West Delaware Street in Holbrook. When they arrived, they 

found victim, Kyle Yellowhair, lying on the sidewalk and bleeding from the neck. Kyle was described as being up and about. He had a one to two inch wound to [the] side of his 

neck, above the collar bone. He had blood on his face. He had 

blood on his shirt and he was spitting up blood.... 

 A witness by the name of Kendrick Kabinto was with 

the victim when the stabbing occurred. He was able to give the investigating officers the name of the culprit.... 

 According to information leading to the stabbing..., [t]he defendant went to his sister’s apartment and exchanged words with the victim. The defendant and victim got into a wrestling match. The defendant also got into a wrestling match with Joe Richardson, the defendant sister’s boyfriend. After this was over, the victim and Kendrick Kabinto left the 

apartment and the defendant followed them. In the area of 

Third Avenue and Erie Street, the defendant and victim 

exchanged words again. The witness...looked back, [and] 

saw the victim holding the left [side] of his face and he saw 

the defendant holding a knife. 

 [Defendant] was arrested without incident. He 

admitted to stabbing the victim when anger took over.... The 

defendant was on intensive probation when he committed the 

instant offense. 

(Doc. 13-1, Ex. E, at 33-34.) 

 The State charged Petitioner in the Navajo County Superior Court with attempted 

first-degree murder, a class 2 felony (Count 1), aggravated assault, a class 3 felony 

(Count 2), and misconduct involving weapons, a class 4 felony (Count 3). (Doc. 13-1, 

Ex. A, at 5.) 

b. Plea and Sentencing 

 On September 12, 2008, pursuant to a plea agreement, Defendant pleaded guilty to 

Count 1 with increased sentencing based upon two prior felony convictions. (Doc. 13-1, 

Ex. B, at 9.) Petitioner stipulated his sentenced would not exceed 25 years of 

imprisonment. (Id.) As part of his plea agreement, Petitioner waived his right to a direct 

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appeal under Arizona law. (Id. at 10.) The State agreed to dismiss Counts Two and Three, 

and to dismiss the allegation that the offense was committed while Petitioner was on 

probation. (Id.) On November 19, 2008, the trial court accepted Defendant’s guilty plea 

and sentenced him to a 20-year term of imprisonment. (Doc. 13-1, Ex. F, at 61.) 

c. Petitioner’s Post-Conviction Relief Proceeding 

 On December 18, 2008, Petitioner initiated a timely of-right post-conviction relief 

proceeding in the Superior Court of Arizona. (Doc. 13-1, Ex. H, at 121.) On July 15, 

2010, the trial court conducted a hearing to determine if Petitioner was competent to 

proceed with a post-conviction proceeding and assist counsel with the proceeding. (Doc. 

13-1, Exs. M-N, at 193, 219.) On May 6, 2011, the court concluded that “Defendant has 

failed to present reasonable grounds that he does not understand the nature of his Rule 32 

proceeding and that the Defendant is unable to assist his counsel in this proceeding....” 

(Doc. 13-1, Ex. N, at 220.) 

 On August 5, 2011, Petitioner’s counsel filed a Petition for Post-Conviction 

Relief. (Doc. 13-2, Ex. O, at 2.) On April 30, 2012, the court denied Petitioner’s claims 

and dismissed the PCR petition. (Doc. 13-4, Ex. R, at 33.) 

 The court granted counsel’s request for an extension of time until July 30, 2012, to 

file a pro se petition with the Arizona Court of Appeals. (Doc. 13-4, Exs. T, V, at 37, 42.) 

Petitioner did not seek further review with the Arizona Court of Appeals. (Doc. 13-4, Ex. 

W, at 49.) 

d. Petitioner’s Federal Habeas Petition 

 On January 5, 2016, Petitioner filed this habeas Petition. (Doc. 1.) On April 18, 

2016, Respondents filed a Limited Answer to the Petition. (Doc. 13.) Petitioner did not 

file a Reply.

In his Petition, Petitioner raises the following grounds for relief: 

1. He received ineffective assistance of counsel when his “previous 

counsel” failed to inform the trial court that he requested new 

counsel. 

 

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2. He received ineffective assistance of counsel at sentencing when his 

counsel incorrectly told the trial court that he had previously pleaded 

guilty in a different federal case, which resulted in an “inappropriate 

aggravating factor.” 

3. His previous counsel failed to research or advise him about the 

potential impact of his prior finding of incompetency, and his 

previous counsel failed to “properly investigate a guilty but insane 

defense.” 

4. He received ineffective assistance of counsel when his previous 

counsel failed to research his mental health history and status. 

5. He received ineffective assistance of counsel when his previous 

counsel failed to present mitigating evidence based on his mental 

health history and status. 

6. He received ineffective assistance of counsel when his previous 

counsel presented inaccurate and prejudicial information to the court 

that affected his sentence. 

7. The trial court abused its discretion when it relied on incomplete and 

inaccurate information in finding a “major aggravating factor.” 

(Doc. 1.) 

III. The Petition is Untimely. 

 The writ of habeas corpus affords relief to persons in custody pursuant to the 

judgment of a state court in violation of the Constitution, laws, or treaties of the United 

States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by 

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. 

a. Time Calculation

 The AEDPA imposes a one-year limitation period, which begins to run “from the 

latest of...the date on which the judgment became final by the conclusion of direct 

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

To assess the timeliness of the Petition, the Court determines the date on which 

Petitioner’s conviction became “final by the conclusion of direct review.” 28 U.S.C. § 

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2244(d)(1)(A). By pleading guilty, Petitioner could seek review in an “of-right” 

proceeding under Rule 32, which is the functional equivalent of a direct appeal. See Ariz. 

R.Crim. P. 32.1 and 32.4; Summers v. Schriro, 481 F.3d 710, 715–16 (9th Cir. 2007) 

(noting that Arizona courts consider Rule 32 of-right proceedings a form of direct 

review). 

 On December 18, 2008, Petitioner initiated a timely of-right post-conviction relief 

proceeding. (Doc. 13-1, Ex. H, at 121.) On April 30, 2012, the court denied Petitioner’s 

claims and dismissed the PCR petition. (Doc. 13-4, Ex. R, at 33.) Petitioner had 35 days, 

until June 4, 2012, in which to seek review in the Arizona Court of Appeals. See Ariz. 

R.Crim. P. 32.9(c) (providing that a petition for review must be filed within 30 days from 

the final decision in a post-conviction proceeding); Ariz. R.Crim. P. 1.3 (adding five days 

for mailing). 

 The trial court granted Petitioner an extension of time until July 30, 2012, to file a 

pro se petition with the Arizona Court of Appeals. (Doc. 13-4, Exs. T, V, at 37, 42.) 

Petitioner did not seek review in the Arizona Court of Appeals. (Doc. 13-4, Ex. W, at 49.) 

Therefore, the statute of limitations on Petitioner’s habeas claims began to run on July 31, 

2012, the date he could no longer seek review and his convictions became final. See 

Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (for purposes of § 

2244(d)(1)(A), direct review is final upon conclusion of direct review or the time to seek 

such review). The one-year statute of limitations expired on July 31, 2013. The instant 

Petition was filed on January 5, 2016. 

b. Equitable Tolling 

 “A petitioner who seeks equitable tolling of AEDPA’s 1-year filing deadline must 

show that (1) some ‘extraordinary circumstance’ prevented him from filing on time, and 

(2) he has diligently pursued his rights. Holland v. Florida, 560 U.S. 631, 649 (2010).” 

Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). The petitioner bears the burden of 

showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 

1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, 

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rather than a petitioner’s lack of diligence, account for the failure to file a timely habeas 

action. Chaffer v. Prosper, 592 F.3d 1046, 1048–49 (9th Cir. 2010). Equitable tolling 

should be rarely granted. See, e.g., Waldron–Ramsey v. Pacholke, 556 F.3d 1008, 1011 

(9th Cir. 2009). Petitioner must show that “the extraordinary circumstances were the 

cause of his untimeliness and that the extraordinary circumstances made it impossible to 

file a petition on time.” Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). “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. 2000)). 

c. Equitable Tolling and Mental Impairment 

 A petitioner who seeks equitable tolling based on mental impairment must satisfy 

a two-part test. The petitioner: 

must [first] show his mental impairment was an 

“extraordinary circumstance” beyond his control, by 

demonstrating the impairment was so severe that either (a) 

petitioner was unable rationally or factually to personally understand the need to timely file, or (b) petitioner’s mental state rendered him unable personally to prepare a habeas petition and effectuate its filing. Second, the petitioner must 

show diligence in pursuing the claims to the extent he could 

understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to 

assistance. 

Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010) (internal citation, marks, 

footnote, and emphasis omitted). 

 Here, Petitioner asserts that “[d]ue to my incompetency, I don’t understand how to 

fill out this or what to do.” (Doc. 1 at 18.) Petitioner fails to establish that equitable 

tolling should apply. Petitioner demonstrates a clear recollection of the facts related to 

each allegation. In Ground One, Petitioner alleges that his prior “complaints included 

specifically that Mr. Ackerly was not communicating with me regarding this matter 

despite repeated efforts by my requesting communication.” (Doc. 1 at 7.) In Ground Two, 

Petitioner alleges that the “police reports indicated that I was on medications for 

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psychosis, that I had been involved in a murder while a juvenile, that I serve time in DOC 

and that I was incarcerated in a medical facility in Minnesota. My records regarding my 

history were never obtained.” (Doc. 1 at 10.) In Ground Three, Petitioner alleges that “my 

attorney failed to research and advise me regarding the impact of my prior incompetency, 

ongoing mental problems and the possibility of guilty but insane defense.” (Doc. 1 at 13.) 

Petitioner makes similar, specific claims in each of the remaining Grounds. Petitioner had 

sufficient command of the facts to file a Petition. See Waldron–Ramsey v. Pacholke, 556 

F.3d 1008, 1014 (9th Cir. 2009) (affirming denial of equitable tolling and stating that 

petitioner “could have prepared a basic form habeas petition and filed it to satisfy the 

AEDPA deadline.”); United States v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (even 

without access to his case file, petitioner must “at least consult his own memory of the 

trial proceedings.”). Petitioner demonstrates a sufficient command of the facts of his case, 

and his explanation for the delay does not justify equitable tolling. 

 Petitioner’s explanation for an untimely petition is that he did not “understand how 

to fill out this or what to do. I get help here and there, but it’s still very hard for me to 

know what they be talking about.” (Doc. 1 at 18.) Petitioner’s explanation for delay is not 

incompetence, but the legal difficulty in filing a habeas petition. But Petitioner’s pro se

status and unfamiliarity with the law does not excuse his failure to comply with 28 U.S.C. 

§ 2244(d)’s one-year statute of limitations. See, e.g., 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.”). 

 Importantly, the Court has considered Petitioner’s diligence. Petitioner “must 

diligently seek assistance and exploit whatever assistance is reasonably available” to him. 

Bills, 628 F.3d at 1101. “The court should examine whether the petitioner’s mental 

impairment prevented him from locating assistance or communicating with or sufficiently 

supervising any assistance actually found.” (Id.) Here, Petitioner has demonstrated no 

diligence in seeking or locating assistance to assist with the filing of the Petition. See 

also Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (denying equitable 

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tolling and noting from Bills that “the mental impairment must be so debilitating that it is 

the but-for cause of the delay, and even in cases of debilitating impairment the petitioner 

must still demonstrate diligence”). 

 Finally, the Court has reviewed the “Motion for Rule 11 Examination in Regards 

to Petition for Post-Conviction Relief” filed by Petitioner. (Doc. 13-1, Ex. I, at 124.) The 

Court has also reviewed the Response (Doc. 13-1, Ex J, at 127), Reply (Doc. 13-1, Ex. K 

at 155), and the Court’s Order denying Petitioner’s request for a Rule 11 examination in 

his PCR proceeding (Doc. 13-1, Ex. N, at 219). The Court has also reviewed the 

transcript from the evidentiary hearing regarding Petitioner’s competence to proceed with 

post-conviction review proceedings. (Doc. 13-1, Ex. M, at 193.) The trial court concluded 

Petitioner “failed to present reasonable grounds that he does not understand the nature of 

his Rule 32 proceeding and that the Defendant is unable to assist his counsel in this 

proceeding” and denied Petitioner’s “request for a Rule 11 evaluation.” (Doc. 13-1, Ex. 

N, at 218.) 

 Petitioner fails to establish how any impairment: (1) prevented him from 

understanding the need to timely file a habeas petition; or (2) rendered him unable to 

personally prepare a habeas petition and effectuate its filing. Petitioner would be entitled 

to equitable tolling if he established that any impairment was so severe it caused him to 

miss his AEDPA deadline. See Laws v. Lamarque, 351 F.3d 919, 926 (9th Cir. 2003) 

(where “a habeas petitioner's mental incompetence in fact caused him to fail to meet the 

AEDPA filing deadline, his delay was caused by an extraordinary circumstance beyond 

[his] control.”). But Petitioner filed a factually detailed Petition. The cause of the delay 

was not Petitioner’s infirmity, but rather “how to fill out” the Petition and “what to do” 

with the Petition. (Doc. 1 at 18.)1

 Petitioner fails to establish that he is entitled to 

equitable tolling for more than two years. See Johnson v. United States, 544 U.S. 295, 

 

1

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311 (2005) (“[W]e have never accepted pro se representation alone or procedural 

ignorance as an excuse for prolonged inattention when a statute’s clear policy calls for 

promptness.”); Waldron–Ramsey, 556 F.3d at 1012 n. 4 (“[W]e have held that a pro se

petitioner’s confusion or ignorance of the law is not, itself, a circumstance warranting 

equitable tolling.”). 

Although equitable tolling of the statute of limitations is available in certain 

extraordinary circumstances, Petitioner did not carry his burden and demonstrate that he 

is entitled to such relief. 

IV. Evidentiary Hearing 

 An evidentiary hearing is not warranted regarding Petitioner’s claims, including 

equitable tolling, because the record is sufficiently developed to resolve this question. A 

habeas petitioner asserting equitable tolling “should receive an evidentiary hearing when 

he makes ‘a good-faith allegation that would, if true, entitle him to equitable tolling.’” 

Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Laws, 351 F.3d at 919. An 

evidentiary hearing is not mandatory. “Where the record is amply developed, and where 

it indicates that the petitioner’s mental incompetence was not so severe as to cause the 

untimely filing of his habeas petition, a district court is not obligated to hold evidentiary 

hearings to further develop the factual record, notwithstanding a petitioner’s allegations 

of mental incompetence.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010). See 

also Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005) (affirming conclusion that 

“[b]ecause [Gaston] was capable of preparing and filing state court petitions [during the 

limitations period], it appears that he was capable of preparing and filing a [federal] 

petition during the [same time]”). 

V. Conclusion 

 Based on the above analysis, the Court finds that Petitioner’s claims are untimely. 

IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas 

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH 

PREJUDICE. 

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 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 

leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the 

Petition is justified by a plain procedural bar and reasonable jurists 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 14 days from the date of service of a copy of this Report and 

Recommendation within which to file specific written objections with the Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days 

within which to file a response to the objections. 

 Failure to timely 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 to timely 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 order of judgment entered pursuant to the Magistrate Judge’s Report 

and Recommendation. See Fed. R. Civ. P. 72. 

 Dated this 19th day of August, 2016. 

Honorable John Z. Boyle

United States Magistrate Judge

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