Ramirez-Esperano v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED overruling Petitioner's 17 Objections and adopting in whole Judge Fine's 16 R&R. IT IS FURTHER ORDERED denying and dismissing with prejudice the 7 Amended Petition for Wri t of Habeas Corpus pursuant to 28 U.S.C. § 2254. IT IS FURTHER ORDERED denying as moot Petitioner's 20 Motion of Request for Speedy Ruling. IT IS FURTHER ORDERED denying a Certificate of Appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right, and jurists of reason would not find the court's assessment of Petitioner's constitutional claims debatable or wrong. Signed by Judge John J Tuchi on 3/8/19. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Antonio Ramirez-Esperano,
Petitioner,

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ORDER

v.

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No. CV-17-04668-PHX-JJT (DMF)

Charles L Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (Doc. 16) (“R&R”) entered by United

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States Magistrate Judge Deborah M. Fine recommending that the Court deny and dismiss

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

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§ 2254 (Doc. 7). Petitioner has filed an Objection (Doc. 17), as well as a Motion of Request

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for Speedy Ruling (Doc. 20). The Court will overrule the Objection, adopt the R&R and

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dismiss the Petition with prejudice.

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Pursuant to a plea agreement between Petitioner and the Yuma County Attorney,

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Counts One and Two of the charges against him were amended from the original counts of

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sexual exploitation of a minor to the lesser charge of attempted exploitation; the remaining

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six exploitation charges were to be dismissed. The result of this amendment, which

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Petitioner agreed to in his plea agreement, had the effect of significantly lessening his

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exposure to prison time. At his change of plea hearing, Petitioner answered all of the

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questions put to him by the judge so as to satisfy the judge that Petitioner knew and

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understood what he had agreed to, and his attorney advised the same. Petitioner signed

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and initialed on each page the plea agreement containing the acknowledgement to the

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amended lesser charges. At the conclusion of proceedings, Petitioner got the benefit of the

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reduced charges and was sentenced accordingly. He now seeks to disavow all of that to

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which he avowed under oath before.

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Judge Fine correctly analyzed the matter and concluded, according to the applicable

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standard, that Petitioner does not even argue, let alone establish, that the state court’s

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adjudication of Petitioner’s claims was a decision contrary to established federal law or a

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decision based on an unreasonable determination of the facts. The Court will go further

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and find that the Petition, and the argument Petitioner makes in it, is frivolous and wasteful

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of the Court’s time.
IT IS ORDERED overruling Petitioner’s Objections (Doc. 17) and adopting in
whole Judge Fine’s R&R (Doc. 16).
IT IS FURTHER ORDERED denying and dismissing with prejudice the Amended
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7).
IT IS FURTHER ORDERED denying as moot Petitioner’s Motion of Request for
Speedy Ruling (Doc. 20).

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IT IS FURTHER ORDERED denying a Certificate of Appealability as Petitioner

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has not made a substantial showing of the denial of a federal constitutional right, and jurists

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of reason would not find the court’s assessment of Petitioner’s constitutional claims

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debatable or wrong.

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Dated this 8th day of March, 2019.

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Honorable John J. Tuchi
United States District Judge

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