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Aljibory v. Ryan

United States District Court, D. Arizona

February 21, 2014

Ali Zugair Aljibory, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

STEVEN P. LOGAN, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON, UNITED STATES DISTRICT JUDGE:

Petitioner Ali Aljibory, who is confined in the Arizona State Prison Complex in Phoenix, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).

BACKGROUND

On April 27, 2011, Petitioner was indicted by a grand jury in the Maricopa County Superior Court ("Superior Court"), Case No. CR XXXX-XXXXXX-XXX, charging him with unlawful discharge of a firearm in violation of A.R.S. § 13-3107 (Count I), disorderly conduct in violation of A.R.S. § 13-2904 (Count II), and misconduct involving weapons (as a prohibited possessor) in violation of A.R.S. § 13-3102 (Count III). (Doc. 9-1, Exh. A.) Following a jury trial, on October 12, 2011, Petitioner was found guilty on all three counts. (Doc. 9-1, Exh. B.) On November 16, 2011, the Superior Court sentenced Petitioner to concurrent terms of 2.25 years' imprisonment for Counts I and II, and 4.5 years' imprisonment for Count III. (Doc. 9-1, Exh. C.)

Petitioner timely filed a notice of appeal (Doc. 9-1, Exh. E), and on May 18, 2012, appellate counsel filed an opening brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he had searched the record on appeal and found no question of law that was not frivolous (Doc. 9-1, Exh. F). Appellate counsel further requested that the Arizona Court of Appeals search the record for fundamental error (Doc. 9-1, Exh. F), and that Petitioner be permitted to file a supplemental brief in propria persona (Doc. 9-1, Exh. G). The Arizona Court of Appeals granted counsel's requests (Doc. 9-1, Exh. H), and Petitioner's supplemental brief followed (Doc. 9-1, Exh. I). Therein, Petitioner raised three issues:

I. Lack of Interpreter
During the trial process, the judge denied me an interpreter.
II. Denial of Own Counsel
During the trial process, the judge denied me the right to hire private counsel.
III. Denial of Evidence
I told the courts that the gun had fallen and hit the ground, causing it to discharge. Also that it broke because of the fall. So there[] was no way I could of discharge[d] it. The witness lived with me and used drugs and had run-ins with the law. My lawyer or the courts didn't discredit them.

(Doc. 9-1, Exh. I.) In a memorandum decision filed on September 11, 2012, the Arizona

Court of Appeals affirmed Petitioner's convictions and sentences. (Doc. 9-1, Exh, J); See also State v. Aljibory, No. 1 CA-CR 11-0810, 2012 WL 3939352 (Ariz.Ct.App. Sep. 11, 2012). Petitioner filed a Petition for Review in the Arizona Supreme Court (Doc. 9-1, Exh. K), which was summarily denied on February 15, 2013 (Doc. 9-1, Exh. L). Mandate was issued on March 18, 2013. (Doc. 9-1, Exh. M.)

Petitioner filed the instant Petition for Writ of Habeas Corpus on April 1, 2013. (Doc. 1.) Respondents filed a Limited Answer (Doc. 9), to which no reply was filed.

DISCUSSION

In his Petition for Writ of Habeas Corpus, Petitioner raises two grounds for relief.

In their answer, Respondents argue that Petitioner's claims, without more, are not cognizable on federal habeas review. Alternatively, Respondents argue that Petitioner failed to exhaust his claims, and therefore they are procedurally barred from review. For the reasons that follow, the Court concludes that Petitioner's claims are procedurally barred from review and ...


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