United States District Court, D. ArizonaMay 16, 2008
No. CV07-0864-PHX-SRB (D. Ariz. May. 16, 2008)

No. CV07-0864-PHX-SRB.

May 16, 2008


SUSAN BOLTON, District Judge

Petitioner, Gary Eugene Yoder, filed a Petition for Writ of Habeas Corpus on April 25, 2007, arising out of his state court convictions for one count of burglary and three counts of aggravated assault. He was sentenced to 3.5 years in prison on the burglary count and 10.5 years on each of the aggravated assault counts. The three aggravated assault sentences were ordered to be served concurrent with one another but consecutive to the 3.5 year burglary sentence. Petitioner raises four claims in his petition. Ground One claims violations of his constitutional right to a fair day in court, clean hand doctrine, right [to] an unbiased court, the right that tainted evidence and testimony will not be used to get a conviction, the right not to have unfair and biased (sic) perjured and unduly suggestive testimony and evidence used against him. For Ground Two, Petitioner alleges that the Supreme Court of Arizona summarily dismissed his case in violation of the law of habeas corpus. In Ground Three, Petitioner alleges that the state court judge was biased against him and even though he has raised these claims in the Supreme Court he has not received any response by the date of the filing of his petition. In Ground Four he alleges that the State of Arizona railroaded him to prison to protect the police officers who were the named victims of the aggravated assault because of their poor training, poor ability to act as police officers rather than vigilantes and to cover up their attempted murder of him. The Government answered the petition on September 13, 2007. Petitioner filed his reply on September 26, 2007. Petitioner also filed two supplements to his petition.

On April 10, 2008, the Magistrate Judge issued his Report and Recommendation recommending that the petition be denied and dismissed with prejudice. Petitioner has filed his objections to the Report and Recommendation in a document entitled, "Response to Report and Recommendation by the Honorable Edward C. Voss U.S. Magistrate Judge the (R and R) is in Error and it's `Biased' Request `All Writs Act' or Whatever This Court Deems Appropriate or Prudent." Respondents have neither objected nor responded to Petitioner's objections.

The procedural history of Petitioner's criminal case in state court is accurately set forth in the Magistrate Judge's Report and Recommendation and Petitioner does not challenge that statement of the history. It was the Magistrate Judge's conclusion that Petitioner has raised no federal claims and is, therefore, not entitled to review by this Court. The Magistrate Judge concluded that the claims raised by Petitioner were claims only reviewable in state court.

After summarizing Petitioner's claim in Ground One and the paragraph of supporting facts that follow, the Magistrate Judge concluded that there is no discernable allegation of a violation of the Constitution or laws of the United States. Ground Two, which alleges an error by the Supreme Court in summarily dismissing his state habeas proceedings, asserts no federal claim but instead asks this Court to review what he describes as his "strong petition of writ of habeas corpus argument" made to the Arizona Supreme Court. Similarly in Ground Three, Petitioner alleges the bias of his state court trial judge and within the supporting facts asserts that trial errors amounted to violations of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. The Magistrate Judge concluded that this bare-bones allegation that discussion of civil matters in his criminal case violates the Constitution is not a valid federal claim. Petitioner's claim in Ground Four that the State of Arizona railroaded him to prison to protect police officers and the facts supporting that allegation make no mention of any violation of the United States Constitution or federal law and is, therefore, not reviewable in a federal habeas petition.

In his objections, Petitioner claims that the Report and Recommendation reveals the Magistrate Judge's bias and alleges that he "stands at the side of the State of Arizona at every issue and matter presented by this litigant." In a twelve page pleading Petitioner recounts his claims that his state court judge was biased, complains about this Court refusing to respond to his claims concerning poor treatment in the Arizona Department of Corrections, asserts that cumulative errors at his trial demonstrates the constitutional denial of a right to fair trial, and argues that this Court has the right to review de novo his second claim that the Arizona Supreme Court improperly denied his habeas petition and failed to respond to his claim that the state court judge was biased. Petitioner again argues about improper jury instructions, alleged perjury at trial and his claim that this Court can review his claims of bias against the state court judge and must do so de novo. Petitioner also refers to his civil lawsuit, his poor care in prison and deprivations of his rights under the Confrontation Clause. He raises a claim about an opening statement at trial being unduly biased and prejudicial, and a claim that he did not have a mitigation hearing. Petitioner asks this Court to show him mercy because the last seven years of his incarceration have been a living hell and he simply wants to piece together a life with what time he has left. Finally, Petitioner's objections contain a prayer for relief requesting, in part, that he be placed in facility where he can receive proper care, that he be released from prison pursuant to whatever the Court decides is a proper release or have his sentence reduced, order restitution as the Court deems appropriate or vacate an existing restitution order, find him not guilty and order the State of Arizona to help him re-enter society.

None of the matters raised in the Petition for Writ of Habeas Corpus, in the Supplements, in the Reply, or in Response to the Report and Recommendation convince this Court that the Magistrate Judge erred in determining that Petitioner had failed to raise federal claims reviewable by this Court. The Court agrees with the conclusion of the Magistrate Judge that Petitioner has failed to adequately allege he is being held in violation of the Constitution or laws of the United States. His habeas petition must be denied and dismissed with prejudice.


IT IS ORDERED overruling Petitioner's objections as set forth in Petitioner's Response to the Report and Recommendation.

IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge as the Order of this Court.

IT IS FURTHER ORDERED denying any pending motions.

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus is denied and dismissed with prejudice.