Zihir v. Ryan et al

Filing 35

ORDER Judge Andersons R&R (Doc. 29) is accepted. The second amended petition for writ of habeas corpus (Doc. 15) is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied as stated above. Signed by Judge David G Campbell on 12/13/2011. (KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV10-2393-PHX-DGC Sihir Hassan Zihir, Petitioner, 10 11 vs. 12 ORDER Charles L. Ryan, et al., Respondents. 13 14 15 In 1982, Petitioner Sihir Hassan Zihir1 was convicted in Pinal County Superior 16 Court, Case No. 9553, of dangerous or deadly assault by an inmate in custody and 17 possession of a dangerous or deadly instrument by an inmate in custody. Doc. 23-1, at 2. 18 On February 16, 1982, the trial court sentenced Zihir to a mandatory term of life 19 imprisonment without the possibility of parole until he served at least 25 years on the 20 assault conviction. 21 possession of a deadly weapon conviction. Doc. 23-1, at 16. The court upheld Zihir’s 22 convictions and sentences on direct appeal and dismissed his post-conviction action. 23 Doc. 23-1, at 62, 68. Zihir did not seek review in the Arizona Court of Appeals. The court sentenced Zihir to four years’ imprisonment on the 24 In 2009, Zihir sent a letter to the Arizona Board of Executive Clemency asserting 25 that he was entitled to a hearing to determine his parole status, but that no such hearing 26 had been held. Doc. 23-1, at 72. Zihir also filed an Inmate Grievance in June 2010 with 27 28 1 Petitioner was formerly known as David Samuel Goldston. 1 the Arizona Department of Corrections (“ADC”), complaining that he had been 2 erroneously deemed ineligible for a parole-eligibility hearing. The ADC explained that 3 Zihir would have been eligible for a hearing in July 2009 under his original sentence, but 4 that because of disciplinary violations, his earliest possible parole eligibility date was 5 now April 29, 2012. Doc. 23-1, at 70. Zihir’s administrative appeal of this decision was 6 denied on August 18, 2010. Doc. 23-1, at 75. 7 On November 4, 2010, Zihir filed a petition for writ of habeas corpus in this Court 8 pursuant to 28 U.S.C. § 2254. Doc. 1. The Court dismissed the petition and gave Zihir 9 leave to amend to allege a violation of federal constitutional or statutory rights. Doc. 8. 10 On April 13, 2011, Zihir filed a second amended petition raising four claims for habeas 11 relief. Doc. 15. The Court required Respondents to answer the petition. Doc. 16, at 2. 12 Respondents filed an answer (Doc. 23) and Zihir filed a reply (Doc. 26). United States 13 Magistrate Judge Lawrence O. Anderson issued a report and recommendation (“R&R”), 14 finding that Zihir’s claims were not cognizable on federal habeas review. Doc. 29. Judge 15 Anderson recommended that Zihir’s petition be denied and that a certificate of 16 appealability (“COA”) and leave to proceed in forma pauperis on appeal be denied. Id. 17 Zihir has filed an objection to the R&R (Doc. 33) and Respondents have filed a response 18 (Doc. 34). Neither party has requested oral argument. For the reasons below, the Court 19 will accept the R&R and deny the petition. 20 I. Standard of Review. 21 A party may file specific written objections to the R&R’s proposed findings and 22 recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must 23 undertake a de novo review of those portions of the R & R to which specific objections 24 are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna- 25 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in 26 whole or in part, the findings or recommendations made by the magistrate judge. Fed. R. 27 Civ. P. 72(b); 28 U.S.C. § 636(b)(1). 28 -2- 1 II. Discussion. 2 Zihir objects to Judge Anderson’s findings on the ground that he has “satisfied the 3 superior court’s sentencing commitment” and yet “the Department of Corrections, which 4 is a state-entity, refuses to certify this Petitioner eligible for parole . . . .” Doc. 33, at 2, 3. 5 Zihir argues that “[t]he problem lies with the Department of Corrections administrator’s 6 inability to correctly interpret and carry out or administrate, the Arizona Revised Statutes, 7 which are directly under the Arizona State’s Constitution which in turn, is under the 8 United States Constitution.” Id. at 3. 9 The federal habeas statute requires a petitioner to allege a “violation of the 10 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The Supreme 11 Court has repeatedly stated that “federal habeas corpus relief does not lie for errors of 12 state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 13 U.S. 764, 780 (1990)). 14 conditionally released before the expiration of a valid sentence, and the States are under 15 no duty to offer parole to their prisoners.” Swarthout v. Cooke, 131 S.Ct. 859, 862 16 (2011). Zihir challenges the application of a state law, and therefore his claims are not 17 cognizable on federal habeas review. 18 (9th Cir. 1970) (holding that the defendant’s challenge to the state’s application of parole 19 statutes raised only questions of state law, and was therefore not cognizable on federal 20 habeas corpus review). “There is no right under the Federal Constitution to be McCowan v. Nelson, 436 F.2d 758, 759 21 The R&R also recommended that a COA and leave to proceed in forma pauperis 22 on appeal be denied because Petitioner has not made a substantial showing of the denial 23 of a constitutional right. Doc. 29, at 5. Zihir has not objected or shown that a COA and 24 leave to appeal in forma pauperis are warranted. The Court therefore adopts the R&R’s 25 recommendations. 26 IT IS ORDERED: 27 1. Judge Anderson’s R&R (Doc. 29) is accepted. 28 2. The second amended petition for writ of habeas corpus (Doc. 15) is denied. -3- 1 2 3 3. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied as stated above. Dated this 13th day of December, 2011. 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 -4-

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