Schultz v. Ryan et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS 16 . IT IS FURTHER ORDERED that Ground One, the Sixth Amendment claim, of the Petition for Writ of Habeas Corpus is denied. IT IS FURTHER ORDERED that Ground Two, the Fourteenth Amendment claim, of the Petit ion for Writ of Habeas Corpus is dismissed with prejudice. IT IS FURTHER ORDERED denying any Certificate of Appealability and leave to proceed in forma pauperis on appeal. The dismissal of the Petition is justified by a plain procedural bar and juris ts of reason would not find the procedural ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 3/15/11. (LAD)

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Schultz v. Ryan et al Doc. 17 1 2 3 4 5 6 7 8 9 10 11 12 Charles L. Ryan, et al. 13 Respondents. 14 15 16 vs. George Schultz, III, Petitioner, NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) No. CV09-2537-PHX-SRB ORDER Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 17 on December 4, 2009 asserting two grounds for relief. First, Petitioner claims his Sixth 18 Amendment rights were violated because the judge rather than the jury determined facts used 19 to increase his sentence. Second, Petitioner claims his Fourteen Amendments rights were 20 violated because the state statutes used to sentence Petitioner were unconstitutionally vague. 21 On February 8, 2010, Respondents filed their answer to Petitioner's Petition for Writ of 22 Habeas Corpus. Petitioner filed his reply on March 19, 2010. On February 8, 2011, the 23 Magistrate Judge issued his Report and Recommendation recommending that Ground One 24 of Petitioner's Petition for Writ of Habeas Corpus be denied and Ground Two be dismissed 25 with prejudice.. 26 In his Report and Recommendation the Magistrate Judge advised the parties that they 27 had 14 days from the date of service of a copy of the Report and Recommendation within 28 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which to file specific written objections with the Court. The time to file such objections has expired and no objections to the Report and Recommendation have been filed. The Court has reviewed the habeas filings and finds itself in agreement with the Report and Recommendation of the Magistrate Judge. IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court. IT IS FURTHER ORDERED that Ground One, the Sixth Amendment claim, of the Petition for Writ of Habeas Corpus is denied. IT IS FURTHER ORDERED that Ground Two, the Fourteenth Amendment claim, of the Petition for Writ of Habeas Corpus is dismissed with prejudice. IT IS FURTHER ORDERED denying any Certificate of Appealability and leave to proceed in forma pauperis on appeal. The dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable and because Petitioner has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. DATED this 15th day of March, 2011. -2-

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