Opinion
No. CV-18-00635-PHX-NVW-DMF
02-20-2019
Herman Joe Aguilar, Petitioner, v. Charles L. Ryan, et al., Respondents.
ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Deborah M. Fine (Doc. 13) regarding petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 11 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner filed objections on February 13, 2019 (Doc. 21) and Respondents filed a reply on February 15, 2019 (Doc. 22).
The Court has considered the objections and reply and reviewed the Report and Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those portions of the Report and Recommendation to which specific objections are made). The Court agrees with the Magistrate Judge's determinations, accepts the recommended decision within the meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner's objections. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate").
The Court adds alternatively that the Petition is unmeritorious because Petitioner pleaded guilty to the crime of child molestation. The decision in May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz.), on which Petitioner relies, was based on a trial, at which the jury first announced itself hung based on inability to agree on whether the burden of proof was carried. Misallocation of burden of proof at trial does not have anything to do with a guilty plea, in which the Defendant admits to the crime. Also, the federal habeas petition in May was promptly filed after conclusion of the state case and therefor was timely without need for an exception or tolling of the federal one-year limit.
IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 13) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.
A certificate of appealability is denied because appellant has not shown that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Dated this 20th day of February, 2019.
/s/_________
Neil V. Wake
Senior United States District Judge