Howard v. Ryan et al

Filing 21

ORDER ADOPTING 18 REPORT AND RECOMMENDATION as the findings of fact and conclusions of law by this Court. IT IS FURTHER ORDERED that the 1 Petition for Writ of Habeas Corpus is DENIED and this action is hereby DISMISSED, and the Clerk of Court sh all enter judgment accordingly. If Petitioner appeals the denial of his petition for habeas relief, any request for certificate of appealability shall be denied based on the Courts determination of the claims presented, and based on the Courts finding that Petitioner has failed to make the requisite substantial showing of a denial of a constitutional right on the grounds presented. See 28 U.S.C. § 2253(C). Signed by Senior Judge Frank R Zapata on 8/4/14.(BAC)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christopher Howard, 10 Petitioner, 11 vs. 12 Charles L. Ryan, et al., Respondents. 13 14 ) ) ) ) ) ) ) ) ) ) ) No. CV 11-496 TUC-FRZ ORDER 15 16 Before the Court for consideration is the Petition for Writ of Habeas Corpus pursuant 17 to 28 U.S.C. § 2254 filed by Petitioner Christopher Howard, pro se, and the Report and 18 Recommendation of the Magistrate Judge, recommending the Court, after an independent 19 review of the record, dismiss the Petition with prejudice. 20 Petitioner entered into a plea agreement in July 2009 in the Superior Court for the 21 State of Arizona, Pima County, where he pleaded guilty to one charge of fraudulent scheme 22 and artifice and one charge of aggravating taking the identity of another. The trial court 23 sentenced Petitioner to concurrent terms totaling 6.5 years. 24 The Arizona Court of Appeals granted review, but denied relief and adopted the 25 decision of the trial court. Petitioner did not seek review of that decision by the Arizona 26 Supreme Court. 27 28 Furthermore, the trial court summarily denied any post-conviction relief sought by Petitioner. 1 The present Petition for Writ of Habeas Corpus, filed on August 12, 2011, raises four 2 grounds for relief, including a failure by Petitioner’s trial lawyer to investigate email and 3 credit transactions, the introduction of evidence obtained as part of an unconstitutional search 4 and seizure, statements obtained in violation of his right to counsel, and ineffective assistance 5 of counsel by being urged to enter into a plea agreement, which are set forth in the Court’s 6 initial screening order (Doc. 3) and the Report and Recommendation (Doc. 18). 7 This matter was referred to Magistrate Judge Jacqueline M. Rateau, pursuant to the 8 provisions of 28 U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of 9 the Rules of Practice of the United States District Court for the District of Arizona, for 10 further proceedings and Report and Recommendation. 11 Magistrate Judge Rateau issued her Report and Recommendation, recommending that 12 the District Court dismiss the Petition for Writ of Habeas Corpus on the basis that Grounds 13 One, Two, and Three are unavailable as grounds for habeas relief due to Petitioner’s signing 14 of a written plea agreement. Furthermore, Petitioner has not properly exhausted the available 15 state remedies for Grounds One, Two, and Three and the grounds are therefore procedurally 16 barred from federal habeas review. 17 The Report and Recommendation also recommends that Ground Four be dismissed, 18 setting forth the facts of Petitioner plea and a thorough analysis regarding the legal basis for 19 determining the voluntariness of a guilty plea. 20 21 The Petitioner filed an Objection to the Report and Recommendation (Doc. 19) challenging the Magistrate Judge’s findings. 22 The Court finds, after consideration of all the matters presented and an independent 23 review of the record herein, including the issues raised by the Petitioner in his objection, that 24 the Petition for Writ of Habeas Corpus shall be denied and this action shall be dismissed in 25 accordance with the Report and Recommendation. Accordingly, 26 IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 18) is 27 hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law by this 28 Court; -2- 1 2 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1) is DENIED and this action is hereby DISMISSED; 3 4 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. 5 IT IS FURTHER ORDERED that, if Petitioner appeals the denial of his petition for 6 habeas relief, any request for certificate of appealability shall be denied based on the Court’s 7 determination of the claims presented, and based on the Court’s finding that Petitioner has 8 failed to make the requisite substantial showing of a denial of a constitutional right on the 9 grounds presented. See 28 U.S.C. § 2253(C).1 10 11 DATED this 4th day of August, 2014. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court “may issue a COA for any issue with respect to which petitioner makes a “substantial showing of the denial of a constitutional right.” Jennings v. Woodford, 290 F.3d. 1006, 1010 (9th Cir. 2002)(citing 28 U.S.C. § 2253(c)(3)). The standard permits an appeal where the petitioner can “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [differently]; or that the questions are adequate to deserve encouragement to proceed further.” Id. (Citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383 (1983)). -3-

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