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