Bossardet v. Ryan et al

Filing 34

ORDER ADOPTING 30 Report and Recommendation, and Petition for Writ of Habeas Corpus is hereby DENIED; judgment shall be entered accordingly. Any request for a certificate of appealability shall be denied. Signed by Senior Judge Frank R Zapata on 7/9/13. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arron Shawn Bossardet,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
Respondents.

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No. CV 10-620-TUC-FRZ
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 Arron Shawn Bossardet,1 through the representation

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of 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 was convicted by jury in state court of first degree murder, aggravated

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assault with a deadly weapon, and three counts of kidnapping, and sentenced by the state trial

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court to concurrent and consecutive terms of imprisonment totaling natural life plus 10.5

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years.

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This matter was referred to Magistrate Judge Glenda E. Edmonds, 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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The Report and Recommendation and Respondent’s Answer incorrectly spelled
Petitioner’s first name as “Aaron.” The record shall reflect that the correct spelling is Arron.

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Magistrate Judge Edmonds issued her Report and Recommendation, recommending

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that the Court, after its independent review of the record, enter an order denying the Petition

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for Writ of Habeas on the merits of the five grounds presented, based on the findings (1) that

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trial counsel was not ineffective on the 11 issues presented; (2) newly discovered evidence

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of post traumatic stress disorder does not constitute a cognizable claim; (3) the trial court’s

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failure to instruct the jury on the “mere presence” defense sua sponte was not error; (4) the

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prosecutor’s alleged improper vouching did not violate due process; and (5) Petitioner’s

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natural life sentence does not violate the Eighth Amendment.

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The Report and Recommendation sets forth a thorough factual and procedural history

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of Petitioner’s state court proceedings and the convictions at issue, with proper citation to the

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state court record, and further provides a thorough analysis under the applicable legal

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standards of the issues presented in this extensively briefed and documented record.

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Petitioner filed his Objection to Magistrate Report and Recommendation, pursuant to

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28 U.S.C. § 636 and Rule 72(b)(2), Fed.R.Civ.P., objecting to the legal conclusions set forth

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in the Report and Recommendation.

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After consideration of the matters presented and an independent review of the record

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herein, including Petitioner’s objection, the Court finds hat the Report and Recommendation

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shall be adopted, thereby denying the Petition for Writ of Habeas Corpus on the merits, and

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dismissing this action in accordance with the recommendations and findings set forth therein.

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Accordingly,

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IT IS ORDERED that Magistrate Judge Edmond’s Report and Recommendation (Doc.

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30) is hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law

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by this Court;

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is hereby
DENIED; judgment shall be entered accordingly;

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IT IS FURTHER ORDERED that, if Petitioner appeals the denial of his petition for

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habeas relief, any request for certificate of appealability shall be denied based on the Court’s

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determination of the claims presented on the merits and that Petitioner has failed to make the
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requisite substantial showing of a denial of a constitutional right on the grounds presented.

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See 28. U.S.C. § 2253(c).

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DATED this 9th day of July, 2013.

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