High-Elk v. Ryan et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS 17 . It is ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this action is hereby DISMISSED; It is FURTHER ORDERED that Petitioner's Motion for Discovery (Doc. 12 ), Motion for Leave t o File Amended Reply to Petition and for Writ of Habeas Corpus (Doc. 15 ), and Motion to Request Title V Disclosure and Discovery (Doc. 16 ) are DENIED as moot. Judgment shall be entered accordingly. Signed by Senior Judge Frank R Zapata on 8/9/12. (See attached PDF for complete information.) (KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rodrick Wade High-Elk,
Petitioner,

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vs.

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Charles L. Ryan; et al.,

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Respondents.

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No. CV 11-364-TUC-FRZ (GEE)
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 Rodrick Wade High-Elk, and the Report and

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Recommendation of the Magistrate Judge, recommending the dismissal of the Petition.

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Respondents filed an Answer replete with exhibits of the state court proceedings. Petitioner

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filed a reply.

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Petitioner was convicted in Pima County Superior Court of three counts of aggravated

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assault with a deadly weapon or dangerous instrument and one count each of driving under

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the influence, aggravated driving with an alcohol concentration of .08 or higher, and fleeing

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from a law enforcement vehicle. He was sentenced to concurrent sentences, the longest of

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which were 15.75 years of imprisonment.

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Petitioner raises four grounds for relief alleging (I) he was denied a fair trial because

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prosecution witnesses improperly testified to prior bad acts; (II) ineffective assistance of

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counsel; (III) the trial court error in sentencing; and (IV) insufficient evidence to support the

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assault convictions

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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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Magistrate Judge Edmonds issued her Report and Recommendation, recommending

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that the Court enter an order dismissing the Petition for Writ of Habeas based on findings that

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the Petition is time-barred by the one-year statutory limitation period. 28 U.S.C. § 2244(d).

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The Report and Recommendation, filed January 31, 2012, sets forth the factual

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background and a thorough procedural history of Petitioner’s state court proceedings and

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conviction at issue, detailing the time periods in regard to Petitioner’s state post-conviction

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proceedings, accurately finding that the limitation period for filing a federal habeas petition

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expired on February 18, 2011. The present Petition was signed by the Petitioner on June 15,

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2011 and untimely filed on June 20, 2011, 122 days beyond the statutory deadline for filing.

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Petitioner filed a Notice of Filing on February 7, 2012 and an “(Amended) Reply to

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Petition for Writ of Habeas Corpus” on February 9, 2012; however no objections to the

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Report and Recommendation pursuant to 28 U.S.C. §636(b) were filed.

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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, that the Report and Recommendation shall be adopted and the

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Petition denied in accordance with the recommendations and findings set forth therein.

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Based on the foregoing,

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

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17] 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 DENIED
and this action is hereby DISMISSED;

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IT IS FURTHER ORDERED that Petitioner’s Motion for Discovery (Doc. 12);

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Motion for Leave to File Amended Reply to Petition and for Writ of Habeas Corpus (Doc.

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15) and Motion to Request ... Disclosure and Discovery (Doc. 16) are DENIED as moot;
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IT IS FURTHER ORDERED that judgment be entered accordingly.

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DATED this 9th day of August, 2012.

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