Morgan #105491 v. Ryan et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION: The Report and Recommendation (Doc. 29 ) is ADOPTED and the Amended Petition for Writ of Habeas Corpus (Doc. 11 ) is DENIED. The Clerk of Court shall enter judgment. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 1/13/17. (KGM)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Thomas Glenn Morgan, 10 Petitioner, 11 ORDER v. 12 No. CV-15-01142-PHX-ROS Charles L Ryan, et al., 13 Respondents. 14 15 Magistrate Judge Deborah M. Fine issued a Report and Recommendation 16 (“R&R”) recommending the Court deny Thomas Glenn Morgan’s petition for writ of 17 habeas corpus. 18 objections, the R&R will be adopted and the petition denied. (Doc. 29). Morgan filed objections but, having reviewed those 19 The amended petition presents three grounds for relief. First, Morgan claims he 20 was denied his right to represent himself at trial pursuant to Faretta v. California, 422 21 U.S. 806 (1975). Second, Morgan claims Arizona law entitles him to an additional 248 22 days of presentence incarceration credit. And third, Morgan claims he was denied his 23 speedy trial rights under the Sixth Amendment. The R&R addresses each of these 24 grounds in detail and there is no need to recount those details here. Instead, the Court 25 will address Morgan’s objections in brief and explain why those objections do not entitle 26 him to relief. 27 A. No Violation of Faretta Rights 28 “Under Faretta, a criminal defendant may invoke the right of self-representation 1 by making an unequivocal request, and knowingly and intelligently waiving the right to 2 counsel.” Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014). Morgan claims he 3 made a request to represent himself on June 12, 2012—the morning of trial. (Doc. 11 at 4 7). The state trial court denied that request and the R&R concluded that denial was not 5 “contrary to, or an unreasonable application of, clearly established Federal law, as 6 determined by the Supreme Court of the United States.” (Doc. 29) (quoting 28 U.S.C. § 7 2254(d)(1)). Morgan objects to this conclusion, arguing his request to represent himself 8 “was made before a Jury Panel was brought in for jury selection and certainly before a 9 jury was empaneled.” (Doc. 30 at 2). But the Ninth Circuit has held “a state court’s 10 denial of a [Faretta] motion made on the morning trial began as untimely was neither 11 contrary to nor an unreasonable application of clearly established federal law.” Stenson 12 v. Lambert, 504 F.3d 873, 884 (9th Cir. 2007). See also Wafer v. Hedgpeth, 627 F. 13 App’x 586, 587 (9th Cir. 2015) (“The California Court of Appeal’s conclusion that 14 Wafer’s second Faretta request, made on the first day of trial, was untimely was neither 15 contrary to nor an unreasonable application of clearly established federal law.”). That is 16 precisely the situation here. 17 Morgan’s first ground for relief fails. Therefore, as explained in more detail by the R&R, 18 B. No Federal Issue Regarding Presentence Incarceration 19 Morgan’s second ground for relief involves an alleged failure to provide him with 20 presentence incarceration credit. The R&R noted this claim is procedurally defaulted 21 and, regardless, is not cognizable on federal habeas review. Morgan’s objections argue 22 the denial of presentence incarceration was a denial of “Equal Protection under the law.” 23 (Doc. 30 at 2). 24 Setting aside the likely procedural default of this claim, 28 U.S.C. § 2254(b)(2), 25 the issue of presentence incarceration credit is a state-law matter and any alleged error in 26 the interpretation or application of state law cannot serve as a basis for habeas relief. 27 Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“We have repeatedly held that federal habeas 28 corpus relief does not lie for errors of state law.”). Morgan cannot convert this state-law -2- 1 matter into a cognizable federal matter simply by asserting general violations of federal 2 constitutional provisions, such as a denial of equal protection. See Langford v. Day, 110 3 F.3d 1380, 1389 (9th Cir. 1996) (habeas petitioner cannot “transform a state-law issue 4 into a federal one merely by asserting a violation of due process”). The failure to award 5 appropriate presentence incarceration is a state-law issue that, in the present 6 circumstances, cannot be addressed here. 7 C. No Speedy Trial Violation 8 Morgan’s final ground for relief is an alleged violation of his speedy trial rights. 9 Again, it appears this ground is procedurally defaulted but the Court will address the 10 merits. 11 balancing test, in which the conduct of both the prosecution and the defendant are 12 weighed.” Barker v. Wingo, 407 U.S. 514, 530 (1972). The R&R pointed out the vast 13 majority of the delay was due to Morgan’s counsel and, even if Morgan could not be held 14 responsible for his own counsel’s delay, Morgan has not established how he was 15 prejudiced by the delay. Morgan does not present any objections to this reasoning and, 16 even if he had, the R&R’s reasoning is sound. Morgan’s third ground fails. 28 U.S.C. § 2254(b)(2). Speedy trial claims requires consideration of “a 17 Accordingly, 18 IT IS ORDERED the Report and Recommendation (Doc. 29) is ADOPTED and 19 the Amended Petition for Writ of Habeas Corpus (Doc. 11) is DENIED. The Clerk of 20 Court shall enter judgment. 21 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 22 proceed in forma pauperis on appeal are DENIED because Petitioner has not made a 23 substantial showing of the denial of a constitutional right. 24 Dated this 13th day of January, 2017. 25 26 27 Honorable Roslyn O. Silver 28 -3-

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