Gonzalez v. Schriro, et., al.
Filing
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ORDER adopting Report and Recommendations re 22 Report and Recommendations.The Petition for Writ of Habeas Corpus is Denied and this action is hereby Dismissed. A Certificate of Appealability shall issue; Judgment is entered.. Signed by Senior Judge Frank R Zapata on 6/19/2012.(JKM)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Robert Gonzalez,
Petitioner,
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vs.
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Charles Ryan, et al.,
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Respondents.
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No. CV 08-658-TUC-FRZ (DTF)
ORDER
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Before the Court for consideration is the Petition for Writ of Habeas Corpus pursuant
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to 28 U.S.C. § 2254 filed by Petitioner Robert Gonzalez, through the representation of
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counsel, and the Report and Recommendation of the Magistrate Judge, recommending the
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dismissal of the Petition.
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Petitioner, convicted in Pima County Superior Court of two counts of attempted first-
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degree murder, four counts of aggravated assault, two counts of endangerment, and one count
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of disorderly conduct, following two separate trials on severed counts, was sentenced in state
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court to concurrent and consecutive sentences totaling a term of 36-years of imprisonment.
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The Petition for Writ of Habeas Corpus sets forth 17 claims for relief.
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This matter was referred to Magistrate Judge D. Thomas Ferraro, pursuant to the
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provisions of 28 U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of
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the Rules of Practice of the United States District Court for the District of Arizona, for
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further proceedings and report and recommendation.
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Magistrate Judge Ferraro issued his Report and Recommendation, recommending that
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the Court enter an order dismissing the Petition for Writ of Habeas based on his findings that
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“Claims 1, 4, 5, 6 (as to [precluded witness] Duran), 10, 12, 14, 15(e), (h) and (i), 16(A) (4),
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(7)(a) and (8), 17(A), and 17(B)(1) do not warrant relief under the AEDPA1 and should be
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dismissed on the merits. [And further] Petitioner’s request for discovery and an evidentiary
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hearing as to Claims 4 and 16(A)(7)(a) ... be denied.”
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The Magistrate Judge further recommends dismissal of Claims 2, 3, 6 (as to precluded
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witnesses Escusa and Canez), 7, 8, 9, 11, 13, 15 (a) to (d), (f) and (g), 16(A)(1), (2), (3), (5),
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(6) and (7)(b), 16(B), 17(B)(2), and 17(C), on the basis the claims are procedurally defaulted.
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The Report and Recommendation sets forth the factual and procedural history of
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Petitioner’s state court proceedings and convictions at issue and provides a thorough analysis
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of the claims and legal standards at issue.
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Petitioner filed an exhaustive Objection to the Report and Recommendation of
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Magistrate Ferraro pursuant to 28 U.S.C. §636(b), challenging the substantive and procedural
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findings set forth therein.
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The Court finds, after consideration of the matters presented and an independent
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review of the record herein, including Petitioner’s detailed Objection to the Report and
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Recommendation, Respondents’ response and Petitioner’s reply thereto, that the Petition
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should be denied and this action be dismissed in accordance with the recommendations set
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forth therein.
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Petitioner’s assertion that he “is aware that many times the District Court does in fact
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adopt the recommendations of the Magistrate notwithstanding the clear and cogent objections
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made by Petitioner on such Habeas Corpus petitions” is unfounded and disingenuous.
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Notwithstanding the foregoing, Petitioner’s request for a certificate of appealability will be
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granted.
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Petitioner’s habeas claims are governed by the applicable provisions of the
Antiterrorism and Effective Death Penalty Act (AEDPA). See Lindh v. Murphy, 521 U.S.
320, 336, 117 S.Ct. 2059, 2068 (1997).
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A court “must resolve doubts about the propriety of a COA in the petitioner’s favor.”
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Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002)(citing Lambright v. Stewart, 220
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F.3d 1022, 1025 (9th Cir. 2000) (en banc). The Court “may issue a COA for any issue with
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respect to which petitioner makes a “substantial showing of the denial of a constitutional
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right.” Id.; 28 U.S.C. § 2253(c)(2). This showing can be established by demonstrating that
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the issues are “adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
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529 U.S. 473, 484, S.Ct. (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4, S.Ct.
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(1983)). The Court finds that the issues presented advance the requisite showing for a COA
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to issue. Accordingly,
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IT IS ORDERED that Magistrate Judge Ferraro’s Report and Recommendation [Doc.
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by this Court;
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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED
and this action is hereby DISMISSED;
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IT IS FURTHER ORDERED that a Certificate of Appealability shall issue;
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IT IS FURTHER ORDERED that judgment be entered accordingly.
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DATED this 19th day of June, 2012.
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