Gonzalez v. Schriro, et., al.

Filing 30

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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