Ball v. Schriro et al

Filing 26

ORDER adopting 23 Report and Recommendations. Objections raised by the Petitioner are overruled. Petition for Writ of Habeas Corpus 1 is denied and this action is dismissed with prejudice. Signed by Judge David C Bury on 11/19/09.(SSU, )

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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 Earl Ball, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) Petitioner, ) v. ) ) ) Charles L. Ryan, et al., ) ) Respondents. ) ______________________________________ ) CV-07-491-TUC-DCB ORDER This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. 636(b) and the local rules of practice of this Court for a Report and Recommendation (R&R) on the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. Before the Court is the Magistrate Judge's Report and Recommendation, which recommends that the Petition be denied and dismissed. The Petitioner filed Objections to the Report and Recommendation on November 9, 2009. PETITIONER'S OBJECTIONS Petitioner's objections reiterate the claims contained in the habeas petition: (1) prosecutorial misconduct; (2) mistake of law; (3) state bar from prosecution; and (4) ineffective assistance of counsel. Basically, Petitioner alleges that the recommendation to dismiss the action is based on the Magistrate Judge's bias and lack of understanding of the law. 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 STANDARD OF REVIEW When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). DISCUSSION Petitioner was convicted in Cochise County Superior Court, case numbers CR 98000296 and CR 98000345, of sexual exploitation of a minor and was sentenced to two 10- year terms of imprisonment. Petitioner names Dora B. Schriro as Respondent to the Petition and the Arizona Attorney General as an Additional Respondent. Petitioner raises four grounds for relief: (1) the trial prosecutor failed to present exculpatory evidence to the grand jury; (2) Petitioner's sentence violates Blakely; (3) the trial court erred in not finding the allegations against Petitioner barred by the statute of limitations; and (4) Petitioner's trial and appellate counsel were ineffective. Petitioner alleges that he has presented these claims to the Arizona Court of Appeals. Respondents, in a thorough and detailed review of Petitioner's conviction, appeal and post-conviction litigation, argued that the action should be dismissed based on: procedural default and claims not cognizable for federal habeas relief. (Doc. No. 12.) The Magistrate Judge's Report and Recommendation is thorough and well-reasoned. Petitioner's Objections do not highlight any new or pertinent law or facts that were left unconsidered or unresolved by the R&R. CONCLUSION Accordingly, after conducting a de novo review of the record, 2 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 IT IS ORDERED that the Court ADOPTS the Report and Recommendation (Doc. No. 23) in its entirety. are OVERRULED. IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. No. 1) is DENIED and this action is DISMISSED with prejudice. Final Judgment to enter separately. The Objections raised by the Petitioner DATED this 19th day of November, 2009. 3

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