Jackson v. Shinn ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jerry Ramon Jackson, No. CV 17-058-TUC-FRZ 10 Petitioner, ORDER 11 v. 12 David Shinn,1 et al., 13 Respondents. 14 15 16 Petitioner Jerry Ramon Jackson filed a Petition Under 28 U.S.C. § 2254 for Writ of 17 Habeas Corpus (Doc. 1) constructively on January 17, 2017, raising five grounds for relief 18 claiming (1) ineffective assistance of counsel for failing to cross examine the victim at time 19 of deposition; (2) ineffective assistance of counsel for waiving Petitioner’s presence at the 20 deposition; (3) ineffective assistance of counsel for failing to object to the admission of the 21 deposition at trial; (4) insufficient evidence to support counts 1 and 2; and (5) the state trial 22 court improperly considered unconstitutional sentencing factors in sentencing Petitioner in 23 violation of his rights under the Eighth Amendment to the United States Constitution. 24 25 1 On September 13, 2019, Charles Ryan stepped down as Director of the Arizona Department of Corrections. The Court will substitute the new Director, David Shinn, as 26 Respondent in this case. See Fed. R. Civ. P. 25(d) (permitting the court to order substitution 27 of a public officer who is a party in an official capacity when the party ceases to hold office 28 while the action is pending). 1 This case was referred to Magistrate Judge Leslie A. Bowman for all pretrial 2 proceedings and report and recommendation in accordance with the provisions of 28 3 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2 of the Rules of Practice of the United 4 States District Court for the District of Arizona, Local Rules of Civil Procedure. 5 A temporary stay was granted to allow Petitioner to return to state court to pursue 6 post-conviction relief. (Doc. 22) The stay was lifted on July 9, 2019, and Respondents 7 were ordered to file a supplemental answer. (Doc 35) 8 Magistrate Judge Bowman issued her Report and Recommendation on October 3, 9 2019 (Doc. 41) – which provides a thorough review of the state record – recommending 10 that the District Court enter an order denying the petition for habeas relief based on her 11 findings that trial counsel was not ineffective; Petitioner did not receive an unconstitutional 12 sentence; and all remaining claims are procedurally defaulted. 13 Before the Court for consideration are the Petition Under 28 U.S.C. § 2254 for Writ 14 of Habeas Corpus (Doc. 1); Respondents’ Limited Answer to Petition for Writ of Habeas 15 Corpus and Supplemental Answer to Petition for Writ of Habeas Corpus, and attachments 16 thereto (Docs. 11, 12, 36 and 37); Petitioner’s reply (Doc. 40); the Report and 17 Recommendation (Doc. 41); Petitioner’s Objections to Magistrate’s Report and 18 Recommendation (Doc. 44); and Respondents’ response to objections (Doc. 46). 19 Following an independent review of the record, including the pleadings, the Report 20 and Recommendation and the objections thereto, the Court shall accept and adopt the 21 findings therein. Accordingly, 22 IT IS ORDERED that the Report and Recommendation (Doc. 41) is hereby 23 ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; 24 IT IS THEREFORE ORDERED that the Petition Under 28 U.S.C. § 2254 for a 25 Writ of Habeas Corpus (Doc. 1) is DENIED and this case is dismissed with prejudice; 26 IT IS FURTHER ORDERED that Petitioner’s Application for a Certificate of 27 Appealability from the District Court (Doc. 45) is DENIED, based on Petitioner having 28 failed to make a substantial showing of the denial of a federal constitutional right, and that || ajurist of reason would not find the Court’s assessment of Petitioner’s constitutional claims 2|| “debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000). 4 The Clerk of Court is directed to enter judgment accordingly. 5 6 Dated this 4th day of December, 2019. Lash 0 ich 8 M ¢ SG 9 Honorable Evank’R. Zapata 10 Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-