Najar v. Ryan et al

Filing 22

ORDER adopting the 21 Report and Recommendation of the Magistrate Judge as the order of this Court; that the Petition for Writ of Habeas Corpus is denied and dismissed with prejudice. It is further ordered denying any Certificate of Appealability a nd leave to proceedin in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C.A. § 2253(c)(2). it is further ordered directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 08/08/11. (ESL)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Franklin Najar,
Petitioner,

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vs.

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Charles L. Ryan, Terry Goddard,
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Respondents.
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No. CV10-1981-PHX-SRB
ORDER

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Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
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on September 15, 2010 raising seven grounds for relief:
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(1) Petitioner alleges he was denied a jury finding of aggravating factors at his
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2005 re-sentencing, in violation of the Supreme Court’s decision in Blakely v.
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Washington, 542 U.S. 296 (2004).
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(2) Petitioner alleges he was denied his constitutional right to have the aggravating
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factors proved beyond a reasonable doubt at his 2005 re-sentencing.
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(3) Petitioner alleges he was illegally re-sentenced to a term greater than that
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authorized by the finding of guilt and absent jury findings of aggravating factors.
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(4) Petitioner alleges he was denied the effective assistance of counsel at his 2005
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re-sentencing because counsel failed to protect his right to a jury finding of the
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aggravating factors beyond a reasonable doubt.
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(5) Petitioner alleges he was denied the effective assistance of trial counsel
because counsel failed to seek a determination of Petitioner’s competence to be tried.

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(6) Petitioner alleges he was denied his right to due process because he was

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convicted of felony murder when there was insufficient evidence to support the predicate

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felony.

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(7) Petitioner alleges he was denied his right to due process because, during voir

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dire, the jury panel was misinformed about their role in sentencing and Petitioner was

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denied the full use of his peremptory challenges.

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Respondents filed their answer to Petitioner's Petition for Writ of Habeas Corpus on

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April 14, 2011. Petitioner filed a reply on June 17, 2011. On July 19, 2011, the

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Magistrate Judge issued his Report and Recommendation recommending that the Petition

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for Writ of Habeas Corpus be denied and dismissed with prejudice.

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In his Report and Recommendation the Magistrate Judge advised the parties that

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they had 14 days from the date of service of a copy of the Report and Recommendation

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within which to file specific written objections with the Court. The time to file such

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objections has since expired and no objections to the Report and Recommendation have

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been filed.

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The Court 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 the Petition for Writ of Habeas Corpus is denied
and dismissed with prejudice.
IT IS FURTHER ORDERED denying any Certificate of Appealability and leave

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to proceed in forma pauperis on appeal because Petitioner has not made a substantial

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showing of the denial of a constitutional right as required by 28 U.S.C.A. § 2253(c)(2).

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IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.

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DATED this 8th day of August, 2011.

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