James v. Mauldin et al
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|Date Filed||#||Document Text|
|January 27, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION 21 . That the Clerk of the Court enter judgment dismissing the following claims as procedurally defaulted: (1) that portion of Petitioner's Ground I due process claim regarding the filing of felony charg es after expiration of the statute of limitations applicable to misdemeanors; (2) Petitioner's Ground I claim that his rights under the Equal Protection Clause were violated; (3) Petitioner's Ground II claims of due process and Sixth Amendm ent violations; (4) Petitioner's Ground III claims of violation of the Ex Post Facto Clause, Equal Protection Clause and the Due Process Clause with regard to the State's alleged reliance on the 2002 version of Ariz.R.Crim.P. 8.2; (5) Petit ioner's Ground IV claims of ineffective assistance of trial counsel regarding Petitioner's allegations that trial counsel failed to: advise the trial court that the charges against Petitioner were insufficient as a matter of law; subject th e prosecution's case to any meaningful adversarial testing; and raise the issue of Petitioner's right to a speedy trial under the U.S.Constitution; and(6) Petitioner's Ground V claims that: use of his 1992 and 1993 prior convictions vi olated the Equal Protection Clause; use of Petitioner's 1992 conviction at sentencing violated the Due Process Clause due to lack of proper evidence; A.R.S. §13-702(C) is unconstitutional; and the Sixth Amendment was violated due to double or triple counting. IT IS FURTHER ORDERED that judgment be entered denying the following claims on the merits: (1) Petitioner's Ground I claims of violation of the Double Jeopardy Clause and Due Process Clause due to the filing of felony charges after dismissal of the misdemeanor charges; (2) Petitioner's Ground III claim of violation of the Ex Post Facto Clause with regard to the filing of the felony charges after dismissal of the misdemeanor charges; (3) Petitioner's Ground IV c laim of ineffective assistance of counsel concerning trial counsel's alleged failure to advise the court of the lapsed expiration of time with regard to the statute of limitations applicable to misdemeanors; (4) Petitioner's Ground V claims based on Blakely and the Double Jeopardy Clause; and (5) Petitioner's Ground V due process claim challenging the use of his prior convictions at sentencing on the grounds that: the prior convictions were too old to qualify as historical prior f elony convictions; evidence of the 1992 conviction was inadmissible at trial; and the prior convictions were not alleged in the charging document. (6) Any other claim not addressed explicitly in the judgment. IT IS FURTHER ORDERED that the judgment dismiss Petitioner's Ground II as non-cognizable to the extent that Petitioner claims a violation of Rule 8 of the Arizona Rules of Criminal Procedure. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 1/26/10. (DMT)
|December 31, 2009
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus, : Recommending that the District Court dismiss in part and deny the remainder of Petitioner's Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Hector C Estrada on 12/30/09. (TLJ)
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