Penaz v. Schriro et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION. The Magistrate Judge's 15 Report and Recommendation is adopted as the order of this Court; the Petition for Writ of Habeas Corpus is denied; directing the Clerk to enter judgment accordingly. Signed by Judge Susan R Bolton on 3/24/09. (REW, )

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Dora Schriro, Respondent. Lawrence J. Penaz, Petitioner,

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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No. CV07-8073-PCT-SRB ORDER

Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 13, 2007 claiming that (1) that state court violated his Sixth Amendment right "of having a jury find all determinate facts to support [his] aggravated sentence;" (2) that the state court violated his Fourteenth Amendment rights by sentencing him outside the statutory range permitted by a jury's guilty verdict under A.R.S. § 13-701, by finding aggravating factors under § 13-702 without additional fact-finding of aggravating factors, and by sentencing as a dangerous and repetitive offender under A.R.S. § 13-604; and (3) the state court violated his Fourteenth Amendment rights by sentencing him under Arizona's Title 13 (criminal code), when Title 28 (transportation) sets forth sentencing guidelines for some traffic offenses. Respondent filed her answer to Petitioner's Petition for Writ of Habeas Corpus on February 8, 2008. Petitioner filed his reply on February 28, 2008.

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On March 3, 2009, the Magistrate Judge issued her Report and Recommendation recommending that the Petition for Writ of Habeas Corpus be denied. In her Report and Recommendation the Magistrate Judge advised the parties that they had 10 days from the date of service of a copy of the Report and Recommendation within which to file specific written objections with the Court. The time to file such objections has since expired and no objections to the Report and Recommendation have been filed. The Court finds itself in agreement with the Report and Recommendation of the Magistrate Judge. IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is denied. IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly.

DATED this 24th day of March, 2009.

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