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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Arron Shawn Bossardet, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., Respondents. 13 ) ) ) ) ) ) ) ) ) ) No. CV 10-620-TUC-FRZ ORDER 14 15 Before the Court for consideration is the Petition for Writ of Habeas Corpus pursuant 16 to 28 U.S.C. § 2254 filed by Petitioner Arron Shawn Bossardet,1 through the representation 17 of counsel, and the Report and Recommendation of the Magistrate Judge, recommending the 18 dismissal of the Petition. 19 Petitioner was convicted by jury in state court of first degree murder, aggravated 20 assault with a deadly weapon, and three counts of kidnapping, and sentenced by the state trial 21 court to concurrent and consecutive terms of imprisonment totaling natural life plus 10.5 22 years. 23 This matter was referred to Magistrate Judge Glenda E. Edmonds, pursuant to the 24 provisions of 28 U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of 25 the Rules of Practice of the United States District Court for the District of Arizona, for 26 further proceedings and report and recommendation. 27 1 28 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. 1 Magistrate Judge Edmonds issued her Report and Recommendation, recommending 2 that the Court, after its independent review of the record, enter an order denying the Petition 3 for Writ of Habeas on the merits of the five grounds presented, based on the findings (1) that 4 trial counsel was not ineffective on the 11 issues presented; (2) newly discovered evidence 5 of post traumatic stress disorder does not constitute a cognizable claim; (3) the trial court’s 6 failure to instruct the jury on the “mere presence” defense sua sponte was not error; (4) the 7 prosecutor’s alleged improper vouching did not violate due process; and (5) Petitioner’s 8 natural life sentence does not violate the Eighth Amendment. 9 The Report and Recommendation sets forth a thorough factual and procedural history 10 of Petitioner’s state court proceedings and the convictions at issue, with proper citation to the 11 state court record, and further provides a thorough analysis under the applicable legal 12 standards of the issues presented in this extensively briefed and documented record. 13 Petitioner filed his Objection to Magistrate Report and Recommendation, pursuant to 14 28 U.S.C. § 636 and Rule 72(b)(2), Fed.R.Civ.P., objecting to the legal conclusions set forth 15 in the Report and Recommendation. 16 After consideration of the matters presented and an independent review of the record 17 herein, including Petitioner’s objection, the Court finds hat the Report and Recommendation 18 shall be adopted, thereby denying the Petition for Writ of Habeas Corpus on the merits, and 19 dismissing this action in accordance with the recommendations and findings set forth therein. 20 Accordingly, 21 IT IS ORDERED that Magistrate Judge Edmond’s Report and Recommendation (Doc. 22 30) is hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law 23 by this Court; 24 25 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is hereby DENIED; judgment shall be entered accordingly; 26 IT IS FURTHER ORDERED that, if Petitioner appeals the denial of his petition for 27 habeas relief, any request for certificate of appealability shall be denied based on the Court’s 28 determination of the claims presented on the merits and that Petitioner has failed to make the -2- 1 requisite substantial showing of a denial of a constitutional right on the grounds presented. 2 See 28. U.S.C. § 2253(c). 3 4 DATED this 9th day of July, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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