Burke v. Shinn et al

Filing 26

ORDER - IT IS ORDERED overruling Petitioner's Objections (Doc. 24 ) and adopting in whole the Report and Recommendation by Judge Willett (Doc. 16 ). IT IS FURTHER ORDERED dismissing Petitioner's Ground One as procedurally defaulted with out excuse. IT IS FURTHER ORDERED denying Petitioner's Grounds Two, Three and Four on the merits. IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis. Dismissal of Ground One is justified by a plain procedural bar, and Petitioner has failed to make a substantial showing of the denial of a constitutional right in Grounds Two through Four. (See document for further details). Signed by Judge John J Tuchi on 2/16/2021. (LAD)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert James Burke,
Petitioner,

10
11

ORDER

v.

12

No. CV-19-05627-PHX-JJT (ESW)

David Shinn, et al.,

13

Respondents.

14
15

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

16

States Magistrate Judge Eileen S. Willett recommending that the Court dismiss as

17

procedurally defaulted without excuse Ground One of Petitioner Robert James Burke’s

18

Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1), and deny the

19

remaining Grounds Two through Four on their merits. Petitioner has timely filed

20

Objections to the R&R (Doc. 24), which the Court has considered along with Respondents’

21

Response thereto. (Doc. 25.)

22

Petitioner’s Ground One—his argument charging that his trial counsel’s failure to

23

move to dismiss the charges at trial for failure to prove county jurisdiction constituted

24

ineffective assistance of counsel and due process violation—is procedurally defaulted as

25

he did not raise it in his PCR proceedings. Judge Willett correctly concluded that

26

Petitioner’s failure to raise the issue at the state court is unexcused under Martinez v. Ryan,

27

566 U.S. 1 (2012) or otherwise. His initial review counsel was not ineffective in failing to

28

raise the jurisdiction issue in PCR proceedings because doing so would not “more likely

1

than not alter[] the outcome” of the proceedings as required in Strickland v. Washington,

2

466 U.S. 668, 693 (1984). Petitioner’s argument that no witness or other evidence made

3

clear that the “Gilbert Police” who responded to the call were from Gilbert, Arizona—

4

within the state court’s jurisdiction—rather than one of the “Gilberts” in 19 other states—

5

which would not be in the court’s jurisdiction—selectively ignores other evidence. The

6

witness testified that “I first called Phoenix Police, who then routed me to Gilbert Police.”

7

(Doc. 11 Exh. 1 at 802.) As Judge Willett noted, the fact that Phoenix and Gilbert are both

8

in Maricopa County may be judicially noticed. Moreover, a jury sitting in Maricopa County

9

would recognize same, and upon hearing reference to “Gilbert Police,” especially in

10

connection with “Phoenix Police,” would not infer otherwise.

11

Judge Willett also correctly concluded that none of the three decisions of the state

12

court Petitioner challenges in Grounds Two through Four were unreasonably decided or

13

contrary to federal law. That is the standard. For the reasons set forth in Judge Willett’s

14

thorough R&R, which the Court will not repeat yet again, Grounds Two through Four are

15

denied on consideration of the merits.

16
17
18
19
20
21

IT IS ORDERED overruling Petitioner’s Objections (Doc. 24) and adopting in
whole the Report and Recommendation by Judge Willett (Doc. 16).
IT IS FURTHER ORDERED dismissing Petitioner’s Ground One as procedurally
defaulted without excuse.
IT IS FURTHER ORDERED denying Petitioner’s Grounds Two, Three and Four
on the merits.

22

IT IS FURTHER ORDERED denying a certificate of appealability and leave to

23

proceed in forma pauperis. Dismissal of Ground One is justified by a plain procedural bar,

24

and Petitioner has failed to make a substantial showing of the denial of a constitutional

25

right in Grounds Two through Four.

26

Dated this 16th day of February, 2021.

27
28

Honorable John J. Tuchi
United States District Judge
-2-