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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas Glenn Morgan,

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Petitioner,

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ORDER

v.

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No. CV-15-01142-PHX-ROS

Charles L Ryan, et al.,

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Respondents.

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Magistrate Judge Deborah M. Fine issued a Report and Recommendation

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(“R&R”) recommending the Court deny Thomas Glenn Morgan’s petition for writ of

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habeas corpus.

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objections, the R&R will be adopted and the petition denied.

(Doc. 29).

Morgan filed objections but, having reviewed those

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The amended petition presents three grounds for relief. First, Morgan claims he

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was denied his right to represent himself at trial pursuant to Faretta v. California, 422

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U.S. 806 (1975). Second, Morgan claims Arizona law entitles him to an additional 248

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days of presentence incarceration credit. And third, Morgan claims he was denied his

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speedy trial rights under the Sixth Amendment. The R&R addresses each of these

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grounds in detail and there is no need to recount those details here. Instead, the Court

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will address Morgan’s objections in brief and explain why those objections do not entitle

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him to relief.

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A. No Violation of Faretta Rights

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“Under Faretta, a criminal defendant may invoke the right of self-representation

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by making an unequivocal request, and knowingly and intelligently waiving the right to

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counsel.” Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014). Morgan claims he

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made a request to represent himself on June 12, 2012—the morning of trial. (Doc. 11 at

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7). The state trial court denied that request and the R&R concluded that denial was not

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“contrary to, or an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States.” (Doc. 29) (quoting 28 U.S.C. §

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2254(d)(1)). Morgan objects to this conclusion, arguing his request to represent himself

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“was made before a Jury Panel was brought in for jury selection and certainly before a

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jury was empaneled.” (Doc. 30 at 2). But the Ninth Circuit has held “a state court’s

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denial of a [Faretta] motion made on the morning trial began as untimely was neither

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contrary to nor an unreasonable application of clearly established federal law.” Stenson

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v. Lambert, 504 F.3d 873, 884 (9th Cir. 2007). See also Wafer v. Hedgpeth, 627 F.

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App’x 586, 587 (9th Cir. 2015) (“The California Court of Appeal’s conclusion that

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Wafer’s second Faretta request, made on the first day of trial, was untimely was neither

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contrary to nor an unreasonable application of clearly established federal law.”). That is

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precisely the situation here.

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Morgan’s first ground for relief fails.

Therefore, as explained in more detail by the R&R,

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B. No Federal Issue Regarding Presentence Incarceration

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Morgan’s second ground for relief involves an alleged failure to provide him with

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presentence incarceration credit. The R&R noted this claim is procedurally defaulted

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and, regardless, is not cognizable on federal habeas review. Morgan’s objections argue

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the denial of presentence incarceration was a denial of “Equal Protection under the law.”

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(Doc. 30 at 2).

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Setting aside the likely procedural default of this claim, 28 U.S.C. § 2254(b)(2),

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the issue of presentence incarceration credit is a state-law matter and any alleged error in

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the interpretation or application of state law cannot serve as a basis for habeas relief.

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Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“We have repeatedly held that federal habeas

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corpus relief does not lie for errors of state law.”). Morgan cannot convert this state-law

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matter into a cognizable federal matter simply by asserting general violations of federal

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constitutional provisions, such as a denial of equal protection. See Langford v. Day, 110

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F.3d 1380, 1389 (9th Cir. 1996) (habeas petitioner cannot “transform a state-law issue

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into a federal one merely by asserting a violation of due process”). The failure to award

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appropriate presentence incarceration is a state-law issue that, in the present

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circumstances, cannot be addressed here.

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C. No Speedy Trial Violation

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Morgan’s final ground for relief is an alleged violation of his speedy trial rights.

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Again, it appears this ground is procedurally defaulted but the Court will address the

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merits.

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balancing test, in which the conduct of both the prosecution and the defendant are

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weighed.” Barker v. Wingo, 407 U.S. 514, 530 (1972). The R&R pointed out the vast

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majority of the delay was due to Morgan’s counsel and, even if Morgan could not be held

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responsible for his own counsel’s delay, Morgan has not established how he was

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prejudiced by the delay. Morgan does not present any objections to this reasoning and,

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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

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 29) is ADOPTED and

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the Amended Petition for Writ of Habeas Corpus (Doc. 11) is DENIED. The Clerk of

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Court shall enter judgment.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are DENIED because Petitioner has not made a

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substantial showing of the denial of a constitutional right.

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Dated this 13th day of January, 2017.

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Honorable Roslyn O. Silver

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