Vasquez-Morales v. Ryan
Filing
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ORDER ADOPTING 41 Report and Recommendation prepared by Judge Duncan and denying and dismissing with prejudice 11 Second Amended Petition. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because the dismissal of the motions is justified by a plain procedural bar and jurists of reason would not find the proceeding debatable. Signed by Judge John J Tuchi on 8/23/17. (LSP)
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NOT FOR PUBLICATION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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Cesar Vasquez-Morales,
Petitioner,
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ORDER
v.
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No. CV-15-01118-PHX-JJT
Charles L. Ryan,
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Respondent.
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At issue is the Report and Recommendation (“R&R”) (Doc. 41) Submitted by
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United States Magistrate Judge David K. Duncan on June 6, 2017. In the R&R, Judge
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Duncan recommends that this Court deny and dismiss with prejudice Cesar Daniel
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Vasquez-Morales’s Second Amended Petition for Writ of Habeas Corpus (Doc. 11).
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Petitioner timely filed objections to the R&R (Doc. 42), and Respondent Charles L. Ryan
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filed a response in support of the R&R (Doc. 43). Upon review of the R&R and the
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parties’ submissions, the Court will adopt in whole Judge Duncan’s recommendations
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and the underlying reasoning.
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In the R&R, Judge Duncan classified Petitioner’s claims into three distinct
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categories: 1) those claims that were impermissibly vague, in that they failed to meet the
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requirement that any habeas petition must “state the facts supporting each ground”; 2)
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claims constituting ineffective assistance of counsel; and 3) claims that the jury was
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unfairly prejudiced by the introduction of two pieces of evidence, namely his prior felony
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conviction and his immigration status.
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Regarding the third category, the Court agrees with Judge Duncan’s analysis and
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ultimate recommendation. Both the fact of Petitioner’s prior felony conviction and his
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immigration status at the time were relevant at trial to proof of elements of the prohibited
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possessor charges then pending against him. The fact that Petitioner entered a plea of
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guilty to the prohibited possessor charge after commencement of trial, and after the jury
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had heard this evidence, does not diminish the propriety of the presentation to the jury at
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the time it occurred.
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As to the second category – the 11 claims of action or inaction by Petitioner’s trial
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counsel which Petitioner argues constitute ineffective assistance of counsel, and which
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the R&R identifies and lists – Judge Duncan again correctly reasons that, after applying
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the test set forth in Strickland v. Washington, 466 US 668, 687 (1984), the Court here
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cannot say that the conclusion of the Superior Court judge on post-conviction review and
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the Arizona Court of Appeals thereafter was both objectively deficient or caused
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Petitioner any prejudice.
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In reviewing the first category of Petitioner’s claims – comprising eight in all,
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which the R&R enumerates – the Court again agrees with Judge Duncan that each of
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these claims consists of nothing more than conclusory statements as to legal provisions,
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and utterly fail to provide any reviewing court with facts to support those conclusions.
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Pursuant to Rule 2(c)(2) of the Rules Governing Section 2254 Cases, the Court cannot
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consider these arguments, and it will not.
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In his Objection (Doc. 42), Petitioner does not address or respond to any of the
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above recommendations or conclusions in the R&R. Instead, Petitioner simply requests
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the opportunity to return to state court to exhaust any unexhausted claims. First of all, as
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pointed out in Respondent’s Response to those objections (Doc. 43), all such unexhausted
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claims are now procedurally barred because too much time has elapsed since the state
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court decisions Petitioner would revisit have become final. Any such effort therefore
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would be futile. Second, even if Petitioner could return to state court to exhaust any such
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claims, that would fail to address the bases for the rejection of the three categories of
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claims as set forth above.
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IT IS ORDERED adopting in whole the R&R prepared by Judge Duncan
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(Doc. 41), and denying and dismissing with prejudice the Second Amended Petition
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(Doc. 11).
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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to
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proceed in forma pauperis on appeal because the dismissal of the motions is justified by a
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plain procedural bar and jurists of reason would not find the proceeding debatable.
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Dated this 23rd day of August, 2017.
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Honorable John J. Tuchi
United States District Judge
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