Free Order Adopting Report and Recommendations - District Court of Arizona - Arizona

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 27 28 Petitioner has filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The matter was referred to Magistrate Judge David K. Duncan who has issued a Report and Recommendation that recommends that the Petition should be denied and dismissed with prejudice (Doc. 24). Petitioner has not filed an objection to the Report and Recommendation. STANDARD OF REVIEW The Court must review the legal analysis in the Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). The Court must review the factual analysis in the Report and Recommendation de novo for those facts to which objections are filed. Id. "Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact." Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir. 2000). DISCUSSION The Court has considered the pleadings and documents of record in this case. Petitioner has challenged his convictions on two counts of aggravated assault as found by jury
Case 2:03-cv-01611-MHM Document 25 Filed 12/19/2005 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Petitioner, ) ) vs. ) ) Bennie Rollins, Warden; Attorney General) ) of the State of Arizona, ) ) Respondents. ) Wilfredo M. Rodriguez,

No. CIV 03-1611-PHX-MHM (DKD) ORDER

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verdict in the Superior Court of Maricopa County, Arizona. Petitioner was sentenced to concurrent, presumptive 10.5 year prison terms. The Magistrate Judge has recommended that the Petition should be denied and dismissed with prejudice. Petitioner was charged with two counts of aggravated assault under A.R.S. §§ 131204(A)(2) and 1204(C). This required the State to prove Petitioner committed assault as defined in A.R.S. § 13-1203. At trial, the facts showed that on the evening of the incident, officers in a marked patrol car heard shots as they passed a bar in Phoenix, Arizona. Petitioner and others with him left the bar and traveled in a car to a nearby house as the officers followed in their patrol car. Petitioner walked toward the officers who were still in their patrol car and fired two shots from a distance of about twenty yards away. It appears that the trial court and counsel mistakenly believed that an element of the charged offenses was that Petitioner knew, or had reason to know, that the victims were peace officers engaged in their official duties. See A.R.S. § 13-1204(A)(2) which does not require use of a deadly weapon or dangerous instrument, but does require that the person who commits the assault know or have reason to know that the victim is a peace officer. The jury was instructed on this element and returned guilty verdicts that included this element. The trial court sentenced Petitioner to the presumptive term of 10.5 years as to each count, said terms to run concurrently with each other. The Magistrate Judge's recommended disposition is based on the proposed finding that Petitioner's first two grounds are barred based on procedural default and further, the grounds should be rejected on the merits. Petitioner has failed to demonstrate prejudice as to his claim that trial counsel provided ineffective assistance. In addition, as discussed in the Report and Recommendation, Petitioner benefitted from the erroneous jury instruction which committed the state to a higher burden of proof. As to Petitioner's third ground, a claim involving application of the state sentencing statutes is not reviewable in a habeas proceeding and, in Petitioner's case, the state trial court imposed the presumptive term of imprisonment which requires no findings as to aggravation or mitigation as noted by the Arizona Court of Appeals -2Case 2:03-cv-01611-MHM Document 25 Filed 12/19/2005 Page 2 of 3

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in the Memorandum Decision. Petitioner's fourth ground that there was insufficient evidence to support the jury's verdicts is rejected for the reasons set forth in the Report and Recommendation. The Arizona Court of Appeals stated in the Memorandum Decision that Petitioner admitted at trial he fired a deadly weapon with the specific intent to frighten the people in the car. The Court concludes that the Report and Recommendation should be adopted in its entirety. Accordingly, IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 24) is adopted in its entirety as the Order of this Court; IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed. DATED this 16th day of December, 2005.

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