Bautista v. Ryan et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS - IT IS ORDERED that the Magistrate Judge's R&R (Doc. 28 ) is ACCEPTED and Petitioner's renewed motion to stay proceedings ( Doc. 24 ) is DENIED. IT IS FURTHER ORDRED that the Clerk of Court enter judgment denying and dismissing Petitioners Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with prejudice. Additionally, without further order of the Court, the Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. (See document for complete details). Signed by Judge Douglas L Rayes on 3/6/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Luis Alberto Bautista,
Petitioner,

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v.

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Charles L Ryan, et al.,

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No. CV-17-00532-PHX-DLR
ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

Respondents.

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Pending before the Court is the Report and Recommendation (“R&R”) of

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Magistrate Judge John Z. Boyle (Doc. 28) regarding Petitioner Luis Bautista’s Petition

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for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R

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recommends that the Petition be denied and dismissed with prejudice. The Magistrate

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Judge advised the parties that they had fourteen days to file objections to the R&R. (Doc.

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28 at 13 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b), and 72).) Petitioner

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filed objections on January 22, 2018 (Doc. 31), Respondents filed their response to the

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objections on January 25, 2018 (Doc. 32), and Petitioner filed a Reply to Respondents’

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Response to Objections on February 16, 2018 (Doc. 34).

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The Court has considered the objections and reviewed the R&R de novo. See Fed.

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R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

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determination of those portions of the Report and Recommendation to which specific

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objections are made). The Court agrees with the Magistrate Judge’s determination that

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Petitioner’s claim is meritless. The Magistrate Judge correctly noted that Miller v.

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Alabama, 567 U.S. 460 (2012), does not require States to re-litigate sentences in every

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case where a juvenile offender received mandatory life without parole. Rather, “[a] State

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may remedy a Miller violation by permitting juvenile offenders to be considered for

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parole, rather than by resentencing them.” Montgomery v. Louisiana, 136 S. Ct. 718, 736

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(2016). The Magistrate Judge correctly concluded that Arizona remedied any Miller

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error by reinstating parole for juvenile offenders sentenced to life imprisonment, and

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therefore Petitioner’s habeas claim is meritless.

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The Magistrate Judge also correctly concluded that Petitioner’s claim that he is

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entitled to resentencing based upon infirmities within H.B. 2539, the Arizona law

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establishing parole eligibility for juveniles sentenced to life imprisonment, alleges a

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violation of state law. Correctly, the Magistrate noted that federal habeas relief is not

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available to redress alleged errors in state post-conviction proceedings.

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The Court accepts the recommended decision within the meaning of Rule 72(b),

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Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating

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that the district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate”).

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IT IS ORDERED that the Magistrate Judge’s R&R (Doc. 28) is ACCEPTED
and Petitioner’s renewed motion to stay proceedings (Doc. 24) is DENIED.

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IT IS FURTHER ORDRED that the Clerk of Court enter judgment denying and

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dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §

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2254 (Doc. 1) with prejudice. Additionally, without further order of the Court, the Clerk

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shall terminate this action.

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Petition for a Writ of Habeas Corpus, a Certificate of Appealability

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and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of

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the Petition is justified by a plain procedural bar and reasonable jurists would not find the

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ruling debatable, and because Petitioner has not made a substantial showing of the denial

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of a constitutional right.

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Dated this 6th day of March, 2018.

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Douglas L. Rayes
United States District Judge

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