Nixon v. Vail

Filing 22

ORDER adopting 20 REPORT AND RECOMMENDATIONS re 3 Petition for Writ of Habeas Corpus filed by Larry Douglas Nixon, 7 Amended Petition filed by Larry Douglas Nixon by Judge Franklin D. Burgess.(SPH)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 with prejudice. The Petitioner has filed objections to the Report and Recommendation contending that the Magistrate Judge's determination that Petitioner failed to exhaust is erroneous. As detailed by the Magistrate Judge, Petitioner's first claim which alleges a due process violation based on confusing jury instructions is unexhausted, Petitioner is procedurally barred from returning to state court, and Petitioner cannot show cause and actual prejudice. Further, regarding the merits of Petitioner's claim of lack of jury unanimity, the state court decisions are not contrary to or an unreasonable application of clearly established federal law. This matter comes before the Court on the Report and Recommendation of the Magistrate Judge that Petitioner's request for habeas corpus relief be denied and the petition be dismissed v. TIMOTHY WENGLER, et al., Respondents. LARRY DOUGLAS NIXON, No. C09-5013 FDB Petitioner, ORDER ADOPTING REPORT AND RECOMMEDATION DENYING WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITH PREJUDICE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

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Petitioner's second claim for relief, that there was insufficient evidence to impose the firearm enhancement, fails as a review of the record reveals that it cannot be said that no rational trier of fact could not have found the essential elements of the crime alleged beyond a reasonable doubt. Finally, Petitioner's Blakely claim that a misapplication of state law improperly enhanced his sentence fails as the enhancements were based entirely on jury-fact finding. The Court, having reviewed the petition for writ of habeas corpus, the response, the Report and Recommendation of Magistrate Judge Karen L. Strombom, objections to the Report and Recommendation, and the remaining record, does hereby find and ORDER: (1) (2) The Court adopts the Report and Recommendation; Petitioner's writ of habeas corpus (Dkts. 3 and 7) are DENIED and this action is DISMISSED WITH PREJUDICE; and (3) The Clerk is directed to send copies of this Order to Petitioner, counsel for Respondent and to the Hon. Karen L. Strombom. DATED this 25th day of August, 2009.

A

FRANKLIN D. BURGESS UNITED STATES DISTRICT JUDGE

ORDER ADOPTING REPORT AND RECOMMENDATION - 2