Opinion
No. CV05-1395-PHX-SRB.
November 4, 2005
ORDER
Petitioner, Fred Eugene McDay, filed his Petition for Writ of Habeas Corpus on May 11, 2005, asserting that his state court conviction was obtained in violation of his constitutional rights. Specifically, he claims that he was not allowed to confront his accusers, that the jury was not permitted to hear all the evidence, that he was convicted of a lesser included offense without opportunity to rebut the charge, and that a Blakely violation was committed in his sentencing. Respondents' answer urged that all of Petitioner's habeas grounds are procedurally defaulted.
The Magistrate Judge issued his Report and Recommendation on August 23, 2005, recommending that the petition be denied and dismissed with prejudice. Concerning Petitioner's claim that he was not permitted to confront his accusers, the Report and Recommendation notes that two of these claims of error were raised for the first time in his federal petition, specifically, the lack of a preliminary hearing and the indictment charging him with two offenses on separate dates and times. These claims are procedurally defaulted. The third basis for Petitioner's claim that he was not permitted to confront his accusers concerns his claim raised on direct appeal that neither he nor his attorney were present during the grant jury proceedings. As the Magistrate Judge noted, this claim was raised and decided by the Court of Appeals as a matter of state law not cognizable in federal habeas proceedings. Similarly, his claims that the state presented false allegations and information to the grand jury, that the indictment was excluded as substantive evidence and of jury bias were also argued and decided as a matter of state law and are therefore not cognizable in federal habeas proceedings.
On Petitioner's second ground that the jury was not permitted to hear all the evidence, the Report and Recommendation noted that while this issue was raised before the state court it was again raised as a matter of state law and is also not cognizable in federal habeas proceedings. Alternatively, the Magistrate Judge recommended that this claim was without merit.
For Petitioner's third ground, he asserts that his constitutional rights were violated when he was convicted of a lesser included offense with no right to address it at trial. Before the Arizona Court of Appeals Petitioner did not argue any constitutional violations and the Court of Appeals' decision rested on the Arizona Rules of Criminal Procedure. Ground three is also a state law claim not cognizable in federal habeas proceedings and alternatively, the Magistrate Judge found that it was without merit.
For his fourth and final ground, Petitioner alleges the violation of his constitutional rights claiming a Blakely violation as a result of the use of his prior felony convictions to aggravate his sentence. The Magistrate Judge noted that under the specific language in Blakely, prior felony convictions need not be submitted to the jury and because Petitioner received a mitigated sentence, such a sentence is a sentence not "beyond the prescribed statutory maximum" a reasonable interpretation of the Blakely decision by the state court.
On September 9, 2005, Petitioner filed his response to the Report and Recommendation. In that response he largely reargued the issues previously raised in his habeas petition and urged as an excuse for any failure to raised his claims in state court his request of his prison counselor to be present and participant on his appeal "so that I could state my claim's in (propria persona) to avoid writing my claim's down on paper, and perhaps misquoting my complaint's."
IT IS ORDERED overruling Petitioner's objections to the Report and Recommendation. The Court has reviewed the petition, answer and objections and agrees with the Report and Recommendation of the Magistrate Judge that some of Petitioners claims have been procedurally defaulted and the others are not cognizable in federal habeas proceedings because they were raised only as state law claims on appeal. The Court agrees also with the Magistrate Judge that Petitioner's second and third claims are without merit. As to Petitioner's fourth claim that is properly before this Court on a habeas petition, the Court agrees that the state court's conclusion that there was no Blakely violation at sentencing is a reasonable interpretation of Blakely.
IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is denied and dismissed with prejudice.