Cruz #165482 v. Ryan et al

Filing 33

ORDER overruling 32 Petitioner's Objections to the R&R. ORDERED adopting in whole 29 R&R submitted by Judge Pyle in this matter, including the underlying reasoning. ORDERED denying and dismissing 1 Petition for Writ of Habeas Corpus purs uant to 28 U.S.C. § 2254. FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal, because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable. The Clerk of Court shall enter judgment accordingly and terminate this matter. Signed by Judge John J Tuchi on 12/10/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Alberto Cruz,
Petitioner,

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ORDER

v.

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No. CV-16-02784-PHX-JJT (DMF)

Charles L. Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (“R&R”) (Doc. 29) in this matter

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entered by United States Magistrate Judge Charles R. Pyle, recommending the Court deny

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and dismiss with prejudice the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §

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2254. (Doc. 1.) Petitioner timely filed Objections to that R&R. (Doc. 32.) Upon

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consideration of the above filings, the Court will adopt the R&R in whole, overrule the

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Objections, and deny the Petition.

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Because Petitioner did not address Judge Pyle’s findings and recommendations in

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the R&R regarding Grounds One and Two of his Petition, the Court may accept the R&R

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as to those grounds without further review. The Court nonetheless has reviewed Grounds

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One and Two on the merits, and upon that review, finds Judge Pyle’s conclusion that

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Petitioner is not entitled to relief on Grounds One and Two correct in all regards. The

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adjudication of claims underlying Grounds One and Two rests on the determination of

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credibility of, and among witnesses. The determination of the witnesses’ credibility rests

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firmly with the trial court. While Petitioner may disagree with the trial court’s conclusions

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on these points, its conclusions are not subject to upset, particularly in light of the fact that

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the trial court’s determinations were consistent with the plain written language of the plea

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agreement.

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Petitioner has not shown that the trial court’s resolution of the claims underlying

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Grounds One and Two was contrary to clearly established federal law; nor that the

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resolution involved an unreasonable application of that law; nor that the decisions were

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based on an unreasonable determination of facts in light of the evidence before the trial

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court. Relief on Grounds One and Two of the Petition is thus unavailable.

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Judge Pyle also correctly concluded that Grounds Three, Four and Five are

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procedurally defaulted without cause or other legally cognizable excuse. In his Objections,

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Petitioner fails to raise any point of fact or law showing error in Judge Pyle’s conclusions.

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Instead, Petitioner merely re-raises the arguments Judge Pyle had already considered, and

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dealt with, in the R&R. Grounds Three through Five are procedurally defaulted and not

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excused.

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IT IS ORDERED overruling Petitioner’s Objections to the R&R (Doc. 32.)

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IT IS FURTHER ORDERED adopting in whole the R&R submitted by Judge Pyle

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in this matter, including the underlying reasoning. (Doc. 29.)
IT IS FURTHER ORDERED denying and dismissing the Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

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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 Petition is justified by a

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plain procedural bar and reasonable jurists would not find the procedural ruling debatable.

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The Clerk of Court shall enter judgment accordingly and terminate this matter.

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Dated this 10th day of December, 2018.

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Honorable John J. Tuchi
United States District Judge

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