United States District Court, D. Arizona
FRANK R. ZAPATA, Senior District Judge.
Before the Court for consideration is the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Daniel Merced Flores, pro se, and the Report and Recommendation of the Magistrate Judge, who has recommended dismissal.
The Petitioner was convicted after a jury trial of first-degree murder, conspiracy to commit first-degree murder, and kidnaping. The trial court sentenced the Petitioner to concurrent sentences of natural life, life with parole eligibility after 25 years, and 10.5 years imprisonment, respectively.
The Petition for Habeas Corpus argues that ineffective counsel during his plea negotiations, for failure to properly explain that he was facing a sentence of natural life if he lost at trial, as his single ground for relief.
This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to the provisions of 28 U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of the Rules of Practice of the United States District Court of the District of Arizona, for further proceedings and Report and Recommendation.
Magistrate Judge Bowman issued her Report and Recommendation, recommending the Court deny the Petition for Writ of Habeas Corpus. This recommendation is based on the finding that the Petition is time barred. The Magistrate Judge also recommends that the Petitioner is not entitled to equitable tolling of the limitation period. This recommendation is based on the finding that the Petitioner has no explanation as to why he is entitled to equitable tolling.
The Report and Recommendation issued by Magistrate Judge Bowman sets forth the factual and procedural history of the Petitioner's state court proceedings and convictions at issue as well as provides a thorough analysis of the claims and legal standards at issue.
The Petitioner filed an Objection to the Report and Recommendation that was issued by Magistrate Judge Bowman pursuant to 28 U.S.C. § 636(b), challenging the substantive and procedural findings set forth therein.
This Court finds, after consideration of all the matters presented and an independent review of the record which included the entire three week trial transcript, that the Petition for a Writ of Habeas Corpus be denied and this action be dismissed in accordance with the Report and Recommendation set forth therein.
The Court will issue a Certificate of Appealability. The Court "may issue a COA for any issue with respect to which petitioner makes a "substantial showing of the denial of a constitutional right." Jennings v. Woodford, 290 F.3d. 1006, 1010 (9th Cir. 2002)(citing 28 U.S.C. § 2253(c)(2)). The standard "permits appeal where petitioner can "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [differently]; or that the questions are adequate to deserve encouragement to proceed further." Id . (Citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S.Ct. 3383, 77 L.Ed.2d. 1090 (1983)). The Court finds that the issues presented advance the requisite showing for a COA to issue.
IT IS HEREBY ORDERED that the Report and Recommendation [Doc. 21] is hereby ACCEPTED AND ADOPTED as the findings of fact and conclusions of law by this Court;
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is DENIED and this action is hereby DISMISSED;
IT IS FURTHER ORDERED that a Certificate of ...