Flores v. Trujillo et al

Filing 25

ORDERED that the 21 Report and Recommendation is accepted and adopted as the findings of fact and conclusions of law by this Court. It is further ordered that the Petition for Writ of Habeas Corpus is denied and this action is dismissed. Further Ordered that a Certificate of Appealabiity shall issue; judgment shall be entered accordingly. Signed by Senior Judge Frank R Zapata on 4/10/2014.(BAR)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Merced Flores, Petitioner, 10 11 CV-11-660-TUC-FRZ (LAB) vs. 12 13 No. ORDER Charles Ryan, et al., 14 Respondent. 15 16 Before the Court for consideration is the Petition for Writ of Habeas Corpus pursuant to 28 17 U.S.C. § 2254 filed by Petitioner Daniel Merced Flores, pro se, and the Report and Recommendation 18 of the Magistrate Judge, who has recommended dismissal. 19 The Petitioner was convicted after a jury trial of first-degree murder, conspiracy to commit 20 first-degree murder, and kidnaping. The trial court sentenced the Petitioner to concurrent sentences 21 of natural life, life with parole eligibility after 25 years, and 10.5 years imprisonment, respectively. 22 The Petition for Habeas Corpus argues that ineffective counsel during his plea negotiations, 23 for failure to properly explain that he was facing a sentence of natural life if he lost at trial, as his 24 single ground for relief. 25 This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to the provisions 26 of 28 U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of the Rules of Practice 27 of the United States District Court of the District of Arizona, for further proceedings and Report and 28 Recommendation. Magistrate Judge Bowman issued her Report and Recommendation, recommending the Court 1 deny the Petition for Writ of Habeas Corpus. This recommendation is based on the finding that the 2 Petition is time barred. The Magistrate Judge also recommends that the Petitioner is not entitled to 3 equitable tolling of the limitation period. This recommendation is based on the finding that the 4 Petitioner has no explanation as to why he is entitled to equitable tolling. 5 The Report and Recommendation issued by Magistrate Judge Bowman sets forth the factual 6 and procedural history of the Petitioner’s state court proceedings and convictions at issue as well 7 as provides a thorough analysis of the claims and legal standards at issue. 8 The Petitioner filed an Objection to the Report and Recommendation that was issued by 9 Magistrate Judge Bowman pursuant to 28 U.S.C. § 636(b), challenging the substantive and 10 procedural findings set forth therein. 11 This Court finds, after consideration of all the matters presented and an independent review 12 of the record which included the entire three week trial transcript, that the Petition for a Writ of 13 Habeas Corpus be denied and this action be dismissed in accordance with the Report and 14 Recommendation set forth therein. 15 The Court will issue a Certificate of Appealability. The Court “may issue a COA for any 16 issue with respect to which petitioner makes a “substantial showing of the denial of a constitutional 17 right.” Jennings v. Woodford, 290 F.3d. 1006, 1010 (9th Cir. 2002)(citing 28 U.S.C. § 2253(c)(2)). 18 The standard “permits appeal where petitioner can “demonstrate that the issues are debatable among 19 jurists of reason; that a court could resolve the issues [differently]; or that the questions are adequate 20 to deserve encouragement to proceed further.” Id. (Citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 21 103 S.Ct. 3383, 77 L.Ed.2d. 1090 (1983)). The Court finds that the issues presented advance the 22 requisite showing for a COA to issue. 23 24 25 26 IT IS HEREBY ORDERED that the Report and Recommendation [Doc. 21] is hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law by this Court; IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this action is hereby DISMISSED; 27 IT IS FURTHER ORDERED that a Certificate of Appealability shall issue; 28 IT IS FURTHER ORDERED that judgment be entered accordingly. -2- 1 2 DATED this 10th day of April, 2014. 3 4 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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