Gomez v. Ryan et al
Filing
19
ORDER overruling the objections to the Report and Recommendation of the Magistrate Judge. IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court. (Doc. 15). IT IS FURTHER ORDERED that Petitio n for Writ of Habeas Corpus is denied and dismissed with prejudice. IT IS FURTHER ORDERED denying a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Susan R Bolton on 1/19/2012. (KMG)
1
NOT FOR PUBLICATION
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Theodore M. Gomez,
10
Petitioner,
11
vs.
12
Charles L. Ryan, et al.,
13
Respondents.
14
)
)
)
)
)
)
)
)
)
)
)
)
No. CV11-1472-PHX-SRB
ORDER
15
16
Petitioner, Theodore M. Gomez, filed his Petition for Writ of Habeas Corpus on July
17
26, 2011 raising one claim. Petitioner alleges that the sentence imposed upon him in 1996
18
for crimes occurring in 1995 was not authorized by state statute. He claims that his sentence
19
to a term of lifetime probation was in violation of his right to due process of law.
20
Respondents answered the petition and urged that it be denied and dismissed with prejudice
21
because no federal claim was fairly presented in state court resulting in Petitioner's failure
22
to exhaust his state court remedies before bringing his claim in this court. Alternatively,
23
Respondents argue that Petitioner's present claim for due process violations is not cognizable
24
under federal habeas review because his claim of an illegal sentence does not raise federal
25
constitutional questions. Petitioner filed a reply in support of his petition on November 15,
26
2011.
27
On November 23, 2011 the Magistrate Judge issued his Report and Recommendation
28
1
recommending that the petition be denied because Petitioner had failed to exhaust his habeas
2
claim in state court because he failed to raise his claim as a federal due process violation and
3
because Petitioner alleges only that the state court erred in application of state sentencing
4
laws, a claim that does not state a cognizable claim for federal habeas relief. Petitioner filed
5
objections on December 21, 2011.
6
Petitioner's objections to the Report and Recommendation argue that the Report and
7
Recommendation incorrectly concluded that he had not clearly presented his claim in state
8
court because he failed to raise his claim as a violation of federal constitutional rights.
9
Petitioner states, "As the record provides and the petitioner still contends the trial court
10
exceeded his jurisdiction by imposing sentence outside rule and statute. Repugnant to both
11
State and Federal Constitutions." (Doc. 18, Objections to Report & Recommendation at 3).
12
Petitioner did not address the Magistrate Judge's alternative finding that, "Absent a showing
13
of fundamental unfairness, federal habeas corpus relief is not available for a state court's
14
misapplication of its own sentencing laws." (Doc. 15, Report & Recommendation at 12).
15
After review of the petition, answer and reply along with the Report and
16
Recommendation and Petitioner's objections, the Court finds itself in agreement with the
17
Report and Recommendation of the Magistrate Judge and concludes that Petitioner's
18
objections should be overruled. The Court agrees with the Magistrate Judge that Petitioner
19
did not clearly present his claim in state court on his Petition for Post-Conviction Relief as
20
a violation of his federal constitutional rights but merely alleged generally a violation of his
21
federal and state constitutional rights. The Court also agrees with the Magistrate Judge that
22
even if Petitioner had properly attempted to bring his claim as a violation of federal
23
constitutional rights federal habeas corpus relief would not be available because Petitioner's
24
claim is that the state court misapplied its own sentencing laws.
25
26
27
28
IT ORDERED overruling the objections to the Report and Recommendation of the
Magistrate Judge.
IT IS FURTHER ORDERED adopting the Report and Recommendation of the
Magistrate Judge as the order of this Court. (Doc. 15).
-2-
1
2
3
4
IT IS FURTHER ORDERED that Petition for Writ of Habeas Corpus is denied and
dismissed with prejudice.
IT IS FURTHER ORDERED denying a certificate of appealability because Petitioner
has not made a substantial showing of the denial of a constitutional right.
5
6
DATED this 19th day of January, 2012.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?