Diaz v. Ryan et al

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Burns' Report and Recommendation 10 is accepted and adopted by the Court; Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed and denied with prejudice; denying a Cer tificate of Appealability and denying leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial showing of the denial of a constitutional right; denying Petitioner's motion 12 for Discovery and an extension of the deadline for responding to the Report and Recommendation; denying as moot Petitioner's motion 13 for a status report; the Clerk shall close this case. Signed by Senior Judge Paul G Rosenblatt on 3/18/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Salvador Vivas Diaz,

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Petitioner,
v.
Charles L. Ryan, et. al.,

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Respondents.

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No. 11-CV-2520-PHX-PGR (MHB)

ORDER

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Before the Court is the Report and Recommendation of Magistrate Judge Burns (Doc.

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10), which addresses Petitioner’s pro se Petition for Writ of Habeas Corpus, filed December

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20, 2011, pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner filed objections to the Report and

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Recommendation, together with a motion for discovery and for an extension of time to file

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objections. (Docs. 11, 12.)
DISCUSSION

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Petitioner’s habeas petition raised five grounds for relief.1 Magistrate Judge Burns

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found that Grounds One and Two, in which Petitioner challenged the application of an

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aggravating factor and alleged ineffective assistance of counsel, were procedurally barred

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based on independent and adequate state law grounds. Magistrate Judge Burns found that

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Ground Three, alleging that Petitioner was denied his right to be present at his restitution

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hearing, was both procedurally barred and without merit. Magistrate Judge Burns found that

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Grounds Four and Five, alleging a denial of Petitioner’s due process and equal protection

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On March 23, 2009, Petitioner pleaded guilty to manslaughter, a dangerous offense.
Pursuant to the plea agreement, he received a sentence of 16 years. At sentencing Petitioner
waived his appearance at any future restitution hearing.
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rights and raising a claim of actual innocence, are procedurally defaulted because they were

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not presented in state court. Finally, Magistrate Judge Burns concluded that Petitioner failed

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to show cause and prejudice to excuse the defaults or that a fundamental miscarriage of

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justice would result if the claims were not reviewed.

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Petitioner’s objections (Doc. 12) to the Report and Recommendation consist of a

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request for additional, unspecified state court documents and a reference to the arguments

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set forth in his reply brief (Doc. 9). Magistrate Judge Burns addressed Petitioner’s arguments

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and correctly determined that he is not entitled to habeas relief.

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Having considered the matter de novo in light of Petitioner’s objections, the Court will
adopt the Report and Recommendation, deny the habeas petition, and dismiss the action.

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Accordingly,

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IT IS HEREBY ORDERED that Magistrate Judge Burns’s Report and

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Recommendation (Doc. 10) is ACCEPTED and ADOPTED by the Court.
IT IS HEREBY ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is
DISMISSED and DENIED with prejudice. (Doc. 1.)

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IT IS FURTHER ORDERED DENYING a Certificate of Appealability and

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DENYING leave to proceed in forma pauperis on appeal because Petitioner has not made

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a substantial showing of the denial of a constitutional right.

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IT IS FURTHER ORDERED DENYING Petitioner’s motion for discovery and an
extension of the deadline for responding to the Report and Recommendation. (Doc. 12.)
IT IS FURTHER ORDERED DENYING as moot Petitioner’s motion for a status
report. (Doc. 13.)

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IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.

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DATED this 18th day of March, 2013.

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