Cole v. Arizona, State of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles D Cole,
Petitioner,
v.
State of Arizona, et al.,
Respondents.
No. CV-25-04086-PHX-SMB (DMF)
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT
JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and
recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure
(Doc. 19 at 6).1
On October 31, 2025, Petitioner Charles Cole (“Petitioner” and/or “Cole”) initiated
these habeas proceedings by filing a pro se Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2254 (“Petition”) (Doc. 1). After the Petition was dismissed with leave to amend
(Doc. 8), Petitioner filed an Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody (“Amended Petition”) (Doc. 12). The Amended
Petition is directed to Petitioner’s convictions and sentences for two counts of sexual
conduct with a minor in Maricopa County Superior Court case number CR2017-110160
1 Citation to the record as “Doc.” indicates documents as displayed in the official Court
electronic document filing system maintained by the District of Arizona under Case No.
CV-25-04086-PHX-SMB (DMF).
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(Id.) The Amended Petition names Michael Cimino as Respondent and the Arizona
Attorney General as additional Respondent (Id. at 1).
On March 9, 2026, Respondents timely filed a Limited Answer to Petition for Writ
of Habeas Corpus (“Limited Answer”), in which Respondents argue that the Petition
initiating this matter was untimely filed and that the claims raised in the Amended Petition
are waived by virtue of the plea agreement, not cognizable, or procedurally defaulted
without excuse (Doc. 31).
Petitioner timely filed a reply (“Reply”) (Doc. 32).
Upon careful review of the parties’ arguments, the Court’s record in this matter, and
applicable law, it is recommended as set forth below that these proceedings and the
Amended Petition be dismissed with prejudice, the Clerk of Court be directed to terminate
this matter, and a certificate of appealability be denied.
I. STATE COURT PROCEEDINGS
A. Charges, Convictions, and Sentences
On March 9, 2017, Petitioner was indicted on three counts of sexual conduct with a
minor in Maricopa County Superior Court case number CR2017-110160 (Doc. 31-1 at 3-
5). Indictment counts one and two charged Petitioner with conduct alleged to have
occurred on or between November 1, 2016, and December 25, 2016, and indictment count
three charged Petitioner with conduct alleged to have occurred on or between December
26, 2016, and January 1, 2017 (Id. at 4).
Petitioner, who was represented by court appointed counsel, entered into a plea
agreement to plead guilty to counts one and two of the indictment (Id. at 7-10). The
sentencing hearing was held on December 7, 2017, at which the court found that Petitioner
knowingly, intelligently, and voluntarily waived all pertinent constitutional and appellate
rights and Petitioner entered guilty pleas as to indictment counts one and two (Id. at 12).
The court suspended imposition of sentence, placed Petitioner to two concurrent terms of
ten years’ supervised probation to begin on December 7, 2017, and dismissed indictment
count three (Id. at 13-14).
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B. Post-Conviction Relief (“PCR”) Proceedings
On September 26, 2023,2 Petitioner filed his first notice requesting PCR relief and
an accompanying PCR petition (Doc. 31-1 at 26; see id. at 18-24). In Petitioner’s first PCR
petition, Petitioner asserted that the state used perjured testimony, that newly discovered
material facts exist that probably would have changed the judgment or sentence, and that
Petitioner is innocent (Id. at 19-21). On November 2, 2023, the trial court dismissed
Petitioner’s first PCR proceeding (Id. at 26-28). The court stated that Petitioner’s PCR
notice was due “90 days after pronouncement of sentence” and because “the Court
sentenced Defendant on December 7, 2017, the deadline for this Rule 33 proceeding was
March 7, 2018. Accordingly, this Rule 33 proceeding is untimely by more than five years”3
(Id. at 26). Notwithstanding the untimeliness of the proceedings, the trial court further
determined that the claims raised in Petitioner’s first PCR petition were meritless (Id. at
27-28).
Through counsel, Petitioner filed a second notice requesting PCR relief and an
accompanying PCR petition on June 19, 2024 (Doc. 31-1 at 41; see id. at 30-39). In his
second PCR petition, Petitioner argued that newly discovered evidence demonstrates, by
clear and convincing evidence, that the facts underlying the claim would be sufficient to
establish that no reasonable fact finder would find Petitioner guilty beyond a reasonable
doubt (Id. at 30). Specifically, Petitioner argued that an affidavit from the victim
demonstrated that the victim lied to obtain Petitioner’s conviction (Id. at 34-37). On July
1, 2024, the trial court dismissed Petitioner’s second PCR petition as untimely and
2 The trial court order dismissing Petitioner’s first PCR proceeding states that the notice
and petition were filed on September 27, 2023 (Doc. 31-1 at 26), but Petitioner dated the
filing September 26, 2023 (Id. at 23). Because Arizona courts apply the prisoner mailbox
rule to PCR proceedings, the operative date of filing is September 26, 2023. See Melville
v. Shinn, 68 F.4th 1154, 1158 (9th Cir. 2023) (“We assume that [Petitioner] turned his
petition over to prison authorities on the same day he signed it and apply the mailbox rule”
(citing Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (per curiam))).
3 The Maricopa County Superior Court’s publicly available online records reflect that
Petitioner’s first PCR proceeding was initiated in September 2023.
See https://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?ca
seNumber=CR2017-110160 [https://perma.cc/ZG72-MMKH] (last accessed Mar. 27,
2026).
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successive (Id. at 41-42).
Through counsel, Petitioner filed a petition for review with the Arizona Court of
Appeals arguing that the trial court abused its discretion by dismissing Petitioner’s second
PCR petition (Doc. 31-1 at 44-59). In a memorandum decision dated November 20, 2024,
the Arizona Court of Appeals granted review but denied relief concluding that the trial
court did not err in rejecting Petitioner’s claims (Id. at 61-64). State v. Cole, No. 2 CA-CR
2024-0189-PR, 2024 WL 4839055 (Ariz. Ct. App. Nov. 20, 2024). Petitioner did not file
a petition for review with the Arizona Supreme Court (Doc. 12 at 5).
On July 20, 2025, Petitioner filed a third petition with the trial court seeking PCR
relief (Doc. 31-1 at 70-79). On July 29, 2025, the trial court dismissed the petition as
untimely and successive (Id. at 81-82). Petitioner did not seek review of the trial court’s
dismissal of his third PCR proceeding.
II. THESE HABEAS PROCEEDINGS
On October 31, 2025, Petitioner filed the Petition in this Court seeking a Writ of
Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1) and an Application for Leave to Proceed
In Forma Pauperis (“Application”). Petitioner did not use the court-approved forms for
his Petition or Application.
On November 17, 2025, the Court denied the Application without prejudice and
dismissed the Petition with leave to amend because Petitioner did not use the court-
approved forms (Doc. 8 at 2, 4-5). The Court allowed Petitioner 30 days from the date of
the Order to file an amended petition using the court-approved form and to pay the filing
fee or file an Application to Proceed in District Court Without Prepaying Fees or Costs
(Doc. 8 at 4-5).
Petitioner thereafter paid the filing fee (Doc. 10) and filed his Amended Petition
(Doc. 12). Petitioner also filed several documents in support of his Amended Petition
(Docs. 13, 14, 15, 16, 17).
The Court’s January 28, 2026, Order screening the Amended Petition recounts:
In Maricopa County Superior Court case CR2017-110160, Petitioner pled
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guilty to two counts of attempted sexual conduct with a minor pursuant to a
plea agreement. On December []7, 2017,4 the court suspended imposition of
sentence and placed Petitioner on two 10-year terms of supervised probation.
In his Amended Petition, Petitioner names as Respondents Maricopa County
Chief Probation Officer Michael Cimino and Supervising Probation Officer
Marissa Entler, and the Maricopa County Adult Probation Department.
In Ground One, Petitioner alleges actual innocence because the victim had
misrepresented her age to him “as being over the age of consent.” In Ground
Two, Petitioner claims he is subject to unauthorized probation conditions and
sanctions that are “beyond [his] written sentence.” In Ground Three,
Petitioner asserts “Brady/Due Process Violations” because Petitioner was not
provided any police reports or records that showed the victim had
misrepresented her age to him before Petitioner entered his guilty plea. In
Ground Four, Petitioner alleges ineffective assistance of counsel as his trial
counsel “failed to investigate or uncover [the victim’s] false identification
card and age fraud and her admi[ss]ion to law enforcement about her
misrepresentation.” Petitioner states he has presented these claims to the
Arizona Court of Appeals.
(Doc. 19 at 2). The Court’s January 28, 2026, Order concluded and directed:
The Maricopa County Adult Probation Department is not a proper
respondent. Petitioner must name the state officer having custody of him as
the respondent to the petition. See Rule 2(a), Rules Governing Section 2254
Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997). Because
the Maricopa County Adult Probation Department is not a state officer, it
will be dismissed as a Respondent. The Court will require Respondents
Cimino and Entler to answer the Amended Petition. 28 U.S.C. § 2254(a).
(Doc. 19 at 2).
On March 9, 2026, Respondents filed their Limited Answer (Doc. 31) in which
Respondents argue that the Petition initiating these proceedings was untimely filed;
Amended Petition Grounds Two, and Three, and Four are procedurally defaulted without
excuse; Amended Petition Grounds One, Two, Three, and Four are waived by virtue of
Petitioner’s guilty plea; and Amended Petition Ground Two is not cognizable in these
4 The Screening Order states that Petitioner was sentenced on December 17, 2017 (Doc. 19
at 2), but the Maricopa County Superior Court’s sentencing order reflects that the
sentencing hearing took place on December 7, 2017 (Doc. 31-1 at 12).
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habeas proceedings (Id. at 14-18).5 Respondents request that the Court deny and dismiss
the Amended Petition with prejudice and deny a certificate of appealability (Id. at 26). In
support of their Limited Answer, Respondents attached as exhibits relevant record
materials from the state court proceedings (See Doc. 31-1).
Petitioner filed his Reply in support of the Amended Petition (Doc. 32).
III. TIMELINESS
Respondents assert and argue that these proceedings were untimely filed on October
31, 2025 (Doc. 31 at 7-10). Thus, a threshold issue for the Court is whether these habeas
proceedings are time-barred by the applicable statute of limitations. The Court must
resolve the time-bar issue before considering other procedural issues or the merits of any
habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2022).
A. Starting Date of AEDPA’s One-Year Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs
Petitioner’s habeas proceedings because Petitioner filed the Petition after April 24, 1996,
the date AEDPA became effective. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.
2001) (citing Smith v. Robbins, 528 U.S. 259, 268 n.3 (2000)).
AEDPA provides a one-year statute of limitations period. See 28 U.S.C.
§ 2244(d)(1). Under AEDPA, there are four possible starting dates for the beginning of its
one-year statute of limitations period:
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
5 Respondents also address grounds for relief not raised in the Amended Petition (Doc. 31
at 18-24; see Docs. 14, 16). However, grounds not raised in the Amended Petition are not
properly before this Court. See Rule 2(c), Rules Governing Section 2254 Cases (“The
petition must . . . specify all the grounds for relief available to the petitioner[.]”).
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to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). The latest of the applicable possible starting dates is the
operative start date. 28 U.S.C. § 2244(d)(1).
Because the Petitioner’s claim arises from a final judgment, AEDPA’s one-year
statute of limitations start date is determined by 28 U.S.C. § 2244(d)(1)(A) unless a later
start date applies under 28 U.S.C. § 2244(d)(1)(B), (C), or (D).
In Arizona, a defendant who pleads guilty waives the right to direct appeal and may
seek review only by collaterally attacking his convictions through PCR proceedings under
Arizona Rule of Criminal Procedure 32 (now Rule 33).6 See Ariz. R. Crim. P. 17.2(a)(5);
A.R.S. § 13-4033(B). At the time of Petitioner’s sentencing, Rule 32.4(a)(2)(C) required
that an of-right PCR notice be filed within ninety (90) days after entry of judgment and
sentence. When the Rule 32 (now Rule 33) of-right proceeding concludes or the time for
filing such expires, a conviction becomes “final” for purposes of § 2244(d)(1)(A) of
AEDPA. Summers v. Schriro, 481 F.3d 710, 711, 716-17 (9th Cir. 2007); see also A.R.S.
§ 13-4033(B). Thus, when an Arizona petitioner’s PCR proceeding is of-right because of
a guilty plea, AEDPA’s statute of limitations begins to run upon conclusion of review or
the expiration of the time for seeking such review in the of-right PCR proceedings.
Summers, 481 F.3d at 711, 716-17.
Petitioner pleaded guilty to counts one and two of the indictment and was thereafter
sentenced by the trial court on December 7, 2017 (Doc. 31-1 at 12-14). The last day of the
6 Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and
33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court
Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided
among the two new rules based on whether a defendant was convicted at trial (new Rule
32) or pleaded guilty or no contest (new Rule 33). See id. New Rule 33 thus encompasses
the rules applicable to a defendant’s right to seek post-conviction relief when the defendant
is convicted by guilty plea. New Rule 32 and new Rule 33 apply to “all actions filed on or
after January 1, 2020,” and to “all other actions pending on January 1, 2020, except to the
extent that the court in an affected action determines that applying the rule or amendment
would be infeasible or work an injustice, in which event the former rule or procedure
applies.” Arizona Supreme Court Order No. R-19-0012.
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ninety days to file an of-right PCR proceeding was Wednesday, March 7, 2018. Therefore,
pursuant to 28 U.S.C. § 2244(d)(1)(A), the statute of limitations period began running the
next day and expired on Thursday, March 7, 2019. See Patterson, 251 F.3d at 1247
(“Excluding the day on which [the prisoner’s] petition was denied by the Supreme Court,
as required by Rule 6(a)’s ‘anniversary method,’ [AEDPA’s] one-year grace period began
to run on June 20, 1997 and expired one year later, on June 19, 1998. . . .”). Petitioner did
not file these habeas proceedings until over six years later on October 31, 2025 (Doc. 1).
Upon careful review, a later start date of AEDPA’s statute of limitations under 28
U.S.C. § 2244(d)(1)(B) or (C) does not apply. Petitioner does not assert a newly recognized
constitutional right made retroactively applicable to cases on collateral review; nor does
the record support such. See 28 U.S.C. § 2244(d)(1)(C). In his Reply, Petitioner argues
that the state restricted his use of the internet and electronic devices impeding his filing of
a habeas petition (Doc. 32 at 2-3). Yet, the Petitioner’s supervised probation conditions
reflect that Petitioner was ordered to abide by “all standard terms and conditions of
probation including:”
Special Condition: 21
I will abide by the attached special conditions of probation:
• Sex Offender
• Computer Usage
(Doc. 31-1 at 13; see also id. at 87, 89). Thus, Petitioner’s claim of unlawful state action
fails because Petitioner was subject to sex offender and computer usage conditions as part
of his probation and the state could lawfully monitor and restrict his internet and electronic
device usage under Special Condition 21. Notably, Special Condition 21 required
Petitioner to “obtain prior written approval of the APD before accessing the Internet” and
permitted Petitioner to “use a computer and access the internet for work but shall get
approval from Adult Probation for any such access” (Id. at 87). Petitioner also fails to
assert the time period in which the alleged impediment to filing existed or was removed.
See 28 U.S.C. § 2244(d)(1)(D) (“The limitation period shall run from . . . the date on which
the impediment to filing . . . is removed[.]”). Moreover, Petitioner’s assertion of unlawful
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state action impeding filing is belied by the fact that he was able to file PCR petitions with
the trial court in 2023, 2024, and 2025 (Doc. 31-1 at 18-24, 30-39, 70-79). Thus, 28 U.S.C.
§ 2244(d)(1)(B) does not apply here.
To the extent that 28 U.S.C. § 2244(d)(1)(D) (“the date on which the factual
predicate of the claim or claims presented could have been discovered through the exercise
of due diligence”) applies, the Petition was untimely filed by approximately one year. The
factual predicate of Petitioner’s Ground One, Three, and Four claims relate to Petitioner’s
discovery that the “complaining witness used a false name & fake ID card” to “lie[] about
her age & mislead [Petitioner]” (Doc. 12 at 5-6, 8-9, 10) and the factual predicate of
Petitioner’s Ground Two claim relates to “unauthorized probation conditions” alleged to
have begun in 2023 (Id. at 7). As acknowledged by Petitioner, Petitioner obtained an email
in September 2023 and an affidavit in May 2024 setting forth the factual basis for his
Ground One, Three, and Four claims (Id. at 8-9). Furthermore, Petitioner could have
discovered the complaining witness’ alleged use of a false name and fake ID card at or
before sentencing through the exercise of due diligence. Indeed, the presentence
investigation report reflects that the victim’s mother told Petitioner that the victim was
fifteen years old during the relevant time period (Doc. 31-1 at 93). Thus, 28 U.S.C.
§ 2244(d)(1)(D) does not apply regarding the factual predicate to Grounds One, Three, and
Four.
As to the factual predicate of Petitioner’s Ground Two claim, Petitioner states that
“[b]eginning 2023, Allen Larkin added [unauthorized probation conditions] w/o a violation
hearing. As a result I lost housing & business income, kept on GPS for over 1.5 years
despite being low risk” (Doc. 12 at 7). Assuming Petitioner was subject to the alleged
unauthorized probation conditions at the end of 2023, the AEDPA limitations period
expired at the end of 2024 and the October 2025 Petition initiating these proceedings was
untimely by approximately one year.7
7 This further assumes that Petitioner’s Ground Two claim is cognizable in these habeas
proceedings. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (“[H]abeas
jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison
condition will not necessarily shorten the prisoner's sentence.”).
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Accordingly, AEDPA’s statute of limitations expired years before the filing of the
Petition initiating this matter. Further, even if the Court assumes arguendo that Petitioner’s
Ground Two claim is cognizable in these habeas proceedings and that Petitioner discovered
the factual predicate of his Ground Two claim at the end of 2023, the Petition initiating
these proceedings was untimely filed by approximately one year. Thus, these habeas
proceedings were untimely filed unless statutory tolling, equitable tolling, and/or the actual
innocence gateway apply to render these proceedings timely filed and/or to excuse the
untimely filing of these proceedings.
B. Statutory Tolling
AEDPA expressly provides for statutory tolling of the limitations period when a
“properly filed application for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending . . . .” 28 U.S.C. § 2244(d)(2). A collateral
review petition is “properly filed” when its delivery and acceptance are in compliance with
state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000). This includes
compliance with filing deadlines. See Pace v. DiGuglielmo, 544 U.S. 408, 412-13 (2005).
A state post-conviction relief petition not filed within the state’s required time limit is not
“properly filed,” and the petitioner is not entitled to statutory tolling during untimely PCR
proceedings. Id. at 414 (“When a postconviction petition is untimely under state law, ‘that
[is] the end of the matter’ for purposes of § 2244(d)(2).”); Allen v. Siebert, 552 U.S. 3, 6-7
(2007) (finding that inmate’s untimely state post-conviction petition was not “properly
filed” under AEDPA’s tolling provision, and reiterating its holding in Pace, 544 U.S. at
414). Once the statute of limitations has run, subsequent PCR petitions do not restart the
clock. See Jiminez, 276 F.3d at 482; Ferguson, 321 F.3d at 823.
The trial court found Petitioner’s first PCR proceeding, initiated on September 26,
2023, to be untimely because the deadline for Petitioner to initiate an of-right PCR
proceeding was over five years prior on March 7, 2018 (Doc. 31-1 at 26-28). The trial
court further found Petitioner’s second and third PCR proceedings successive and that
Petitioner failed to adequately explain his untimely assertion of his PCR claims (Id. at 41-
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42, 81-83).8 Because untimely PCR proceedings do not statutorily toll AEDPA’s
limitations period, Pace, 544 U.S. at 414, Petitioner’s untimely 2023, 2024, and 2025 PCR
proceedings did not statutorily toll the limitations period. Thus, even if the Court assumes
that the discovery of the factual predicate to Ground Two started the AEDPA’s limitations
period at the end of 2023, statutory tolling does not apply and the limitations period expired
at the end of 2024.
Accordingly, these habeas proceedings were untimely filed unless equitable tolling
and/or the actual innocence gateway apply to excuse Petitioner’s untimely filing of these
proceedings. As set forth below, neither applies to render the filing of these proceedings
timely.
C. Equitable Tolling
The U.S. Supreme Court has held “that § 2244(d) is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (citations omitted).
AEDPA’s limitations period may be equitably tolled because it is a statute of limitations,
not a jurisdictional bar. Id. at 645-46. Petitioner bears the burden of establishing that
equitable tolling is warranted. Pace, 544 U.S. at 418; 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.” (citing Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th
Cir. 2005))).
The Ninth Circuit Court of Appeals will permit equitable tolling of AEDPA’s
limitations period “only when an extraordinary circumstance prevented a petitioner acting
with reasonable diligence from making a timely filing . . . .” Smith v. Davis, 953 F.3d 582,
600 (9th Cir. 2020) (en banc). Put another way, for equitable tolling to apply, Petitioner
must show “(1) that he has been pursuing his rights diligently, and (2) that some
8 It is not the province of federal habeas courts to reexamine state court determinations on
state law questions. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Further, a petitioner
may not “transform a state law issue into a federal one merely by asserting a violation of
due process . . . .” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (quoting Langford
v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)).
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extraordinary circumstance stood in his way” to prevent him from timely filing a federal
habeas petition. Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). To meet the
first prong, Petitioner “must show that he has been reasonably diligent in pursuing his rights
not only while an impediment to filing caused by an extraordinary circumstance existed,
but before and after as well, up to the time of filing his claim in federal court.” Smith, 953
F.3d at 598-99 (expressly rejecting the “stop-clock” approach to equitable tolling). The
second prong is met “only when an extraordinary circumstance prevented a petitioner
acting with reasonable diligence from making a timely filing.” Id. at 600.
“The diligence required for equitable tolling purposes is reasonable diligence, not
maximum feasible diligence.” Holland, 560 U.S. at 653 (internal citations and quotations
omitted). Whether to apply the doctrine of equitable tolling “is ‘highly fact-dependent,’
and [the petitioner] ‘bears the burden of showing that equitable tolling is appropriate.’”
Espinoza-Matthews, 432 F.3d at 1026 (internal citations omitted); see also Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is “unavailable
in most cases,” and “the threshold necessary to trigger equitable tolling [under AEDPA] is
very high, lest the exceptions swallow the rule”) (citations and internal emphasis omitted).
In addition, there must be a causal link between the extraordinary circumstance and
the inability to timely file the petition. Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013)
(“[E]quitable tolling is available ‘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 [the prisoner’s] untimeliness.’” (quoting Ford v.
Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012))). A literal impossibility to file, however,
is not required. Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017) (stating that
equitable tolling is appropriate even where “it would have technically been possible for a
prisoner to file a petition,” so long as the prisoner “would have likely been unable to do
so.” (quoting Gibbs v. Legrand, 767 F.3d 879, 888 (9th Cir. 2014))). “The grounds for
equitable tolling ‘are highly fact-dependent.’” Id. (quoting Sossa, 729 F.3d at 1237).
Nevertheless, a petitioner’s pro se status, indigence, ignorance of the law, or lack of
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representation during the applicable filing period do not constitute extraordinary
circumstances justifying equitable tolling. See Rasberry, 448 F.3d at 1154 (“[A] pro se
petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance
warranting equitable tolling.”); see, e.g., Ballesteros v. Schriro, No. CIV 06-675-PHX-
EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (“A petitioner’s pro se
status, ignorance of the law, lack of representation during the applicable filing period, and
temporary incapacity do not constitute extraordinary circumstances justifying equitable
tolling.”). A prisoner’s “proceeding 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) (citations omitted).
Further, negligence of state court counsel, even appointed counsel, is not a basis for
equitable tolling. See Miranda, 292 F.3d at 1067. For application of equitable tolling, a
petitioner must establish that due to circumstances beyond the petitioner’s control that he
could not have filed “a basic form habeas petition” within the limitations period, despite
exercising reasonable diligence. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1014 (9th
Cir. 2009) (denying tolling when a petition was 340 days late because, for three years, the
petitioner had access to all necessary documents to raise his habeas claim). Even without
counsel, a petitioner can “develop[] that argument, outline[] the other arguments and the
facts underlying those arguments on the form habeas petition, and then [seek] to amend his
petition when he [gets] more information.” Id. Further, even if a petitioner faces
difficulties in accessing legal materials, the petitioner is not entitled to equitable tolling
absent credible allegations that the petitioner was denied access to a particular document
when needed. Id. at 1013-14.
Despite Petitioner’s argument in his Reply that equitable tolling applies (Doc. 32 at
3-4), Petitioner has not shown that he has been pursuing his rights diligently. Nor has
Petitioner shown that some extraordinary circumstance stood in his way to prevent him
from timely filing a federal habeas petition.
As set forth above, Petitioner was sentenced in 2017 and the judgement became
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final on March 7, 2018. Years later, Petitioner filed untimely state court PCR proceedings
in 2023, 2024, and 2025. Petitioner did not file federal habeas proceedings until these
proceedings were initiated in October 2025. The fact that Petitioner filed several
successive and untimely PCR petitions in state court does not account for why he failed to
file a habeas petition with this Court until after the AEDPA deadline to do so expired. See
Pace, 544 U.S. at 418-19.
Moreover, Petitioner has not shown that some extraordinary circumstance prevented
him from timely filing a federal habeas petition. Petitioner states that custody and
revocation proceedings, internet and electronic device restrictions, suppression of
exculpatory evidence, and a period of six months’ confinement in 2025 are extraordinary
circumstances that justify equitable tolling (Doc. 32 at 3). Yet, revocation proceedings,
internet and electronic device restrictions, and imprisonment for probation violations are
not extraordinary circumstances but rather are consequences of Petitioner’s ten-year terms
of supervised probation (see Doc. 31-1 at 12-16, 85-90). Moreover, Petitioner does not
explain how any alleged suppression of exculpatory evidence prevented him from filing a
habeas petition. Petitioner’s argument is belied by the fact that he filed PCR petitions with
the trial court in 2023, 2024, and 2025 raising claims similar to those in the Amended
Petition.
Accordingly, Petitioner has not met his burden of demonstrating that equitable
tolling applies to excuse his untimely filing of these proceedings.
D. Actual Innocence9
In McQuiggin v. Perkins, 569 U.S. 383, 386 (2013), the Supreme Court held that
the “actual innocence gateway” to federal habeas review that applies to procedural bars in
Schlup v. Delo, 513 U.S. 298 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to
petitions that are time-barred under AEDPA. See Schlup, 513 U.S. at 329 (holding that
9 This discussion assumes that actual innocence argument is even available in a habeas
proceeding to a petitioner who pleaded guilty. See Smith v. Baldwin, 510 F.3d 1127, 1140
n.9 (9th Cir. 2007) (acknowledging the “potential incongruity between the purpose of the
actual innocence gateway announced in Schlup and its application to cases involving guilty
(or no contest) pleas” but nevertheless “assum[ing] without deciding that the actual
innocence gateway is available to [a pleading defendant]” (citation omitted)).
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petitioner must make a credible showing of “actual innocence” by “persuad[ing] the district
court that, in light of the new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt”).
To pass through the actual innocence/Schlup gateway, a petitioner must establish
his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v.
United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th
Cir. 2003). 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.” McQuiggin, 569 U.S. at 399
(quoting Schlup, 513 U.S. at 327). “To be credible, such a claim requires petitioner to
support his allegations of constitutional error with new reliable evidence–whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence–that was not presented at trial.” Schlup, 513 U.S. at 324; see also Lee v. Lampert,
653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance
of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such
evidence, in virtually every case, the allegation of actual innocence has been summarily
rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v.
Thompson, 523 U.S. 538, 559 (1998)).
In his Amended Petition and Reply, Petitioner argues that newly discovered
evidence shows that Petitioner is factually innocent of the crimes for which he was
convicted despite the fact that he entered pleas of guilty to the charges (Doc. 12 at 5, 13-
14; Doc. 32 at 4-5). In support of his actual innocence claim, Petitioner relies on an email
the victim sent to the Maricopa County Attorney’s Office, an affidavit sworn by the victim,
and ID cards used by the victim (Doc. 12 at 13-14). Yet, the records amount to the victim
changing her story years after Petitioner’s conviction. As explained by the Ninth Circuit,
“a witness’ ‘later recantation of his trial testimony does not render his earlier testimony
false.’” Jones v. Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (quoting Allen v. Woodford,
395 F.3d 979, 994 (9th Cir. 2005)); see also Dobbert v. Wainwright, 468 U.S. 1231, 1233,
(1984) (Brennan, J., dissenting from denial of certiorari) (“Recantation testimony is
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properly viewed with great suspicion.”); Carriger v. Stewart, 132 F.3d 463, 483 (9th
Cir.1997) (en banc) (Kozinski, J., dissenting) (“Appellate courts . . . look upon recantations
with extreme suspicion.”). The documents presented by Petitioner are therefore
insufficient to demonstrate that it is more likely than not that no reasonable juror would
have convicted Petitioner in the light of the new evidence.
Further, Respondents are correct that the “victim’s affidavit states that she was 16
years old when they had sexual intercourse” and the fake ID cards attached to the Petition
“offer no reliable basis to conclude that the victim was not a minor at that time” (Doc. 10
at 9-10; see Doc. 1 at 11-12, 14-15). Additionally, the presentence investigation report
reflects that the victim’s mother told Petitioner that the victim was fifteen years old during
the relevant time period (Doc. 31-1 at 93).
Thus, the actual innocence gateway does not apply to excuse Petitioner’s untimely
filing of these proceedings.
E. These Proceedings Are Untimely
As explained above, these habeas proceedings were untimely filed, statutory tolling
does not apply, and neither equitable tolling nor the actual innocence gateway excuse the
untimely filing of these proceedings.
IV. CONCLUSION
For the reasons set forth above, the October 31, 2025, Petition (Doc. 1) was untimely
filed by years without adequate excuse for the untimely filing. Because the Petition was
untimely filed without excuse, the Court does not reach Respondent’s alternative
arguments. Due to the untimeliness, it is recommended that the Amended Petition be
dismissed with prejudice without an evidentiary hearing and that the Clerk of Court be
directed to terminate this matter.
Assuming the recommendations herein are followed in the District Judge’s
judgment, it is recommended that a certificate of appealability be denied because dismissal
is justified by a plain procedural bar and reasonable jurists would not find the procedural
ruling debatable. Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253.
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Accordingly,
IT IS HEREBY RECOMMENDED that the Amended Petition (Doc. 12) be
dismissed with prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied.
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) of the 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); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which
to file responses to any objections. Failure to file timely 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 file timely objections to any factual
determination of the Magistrate Judge may be considered a waiver of a party’s right to
appellate review of the findings of fact in an order or judgment entered pursuant to the
Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. In addition, LRCiv 7.2(e)(3)
provides that “[u]nless otherwise permitted by the Court, an objection to a Report and
Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated this 1st day of April, 2026.
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