Finck 058578 v. Shinn

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michael Edward Finck, No. CV 18-282-TUC-FRZ 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents.

16 Petitioner Michael Edward Finck filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus, alleging his Fifth, Sixth and Fourteenth Amendment rights were violated when the trial court (1) permitted him to represent himself at trial without properly advising him about the dangers and disadvantages of self-representation and the potential penalties he was facing; and (2) erred in ruling on his Faretta1 rights.

21 This case was referred to Magistrate Judge Jacqueline M. Rateau for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 23 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2 of the Rules of Practice of the United States District Court for the District of Arizona, Local Rules of Civil Procedure.

25 Magistrate Judge Rateau, after a thorough review of the record ̶ setting forth a detailed procedural history in her Report and Recommendation, issued on January 14, 2020, and an in-depth factual and legal analysis of the issues presented ̶ found that a Faretta v. California, 422 U.S. 806 (1975). || Faretta error occurred which requires the grant of habeas relief and recommends that the || Court conditionally grant Petitioner's Petition for Writ of Habeas Corpus based on her || finding that: 4 Because Finck does not dispute that his initial waiver was valid, the 5 appropriate remedy is to conditionally grant the writ and order that Finck's judgment of conviction be vacated only if the State fails to either dismiss the 6 two counts added to the indictment in March 2012 after the Faretta-compliant 7 waiver of counsel and resentence Finck based on the original charges, or initiate proceeding to retry Finck within a reasonable time. (citations 8 omitted).

9 Petitioner and Respondents both filed objections to the Report and Recommendation.Before the Court for consideration are the Petition (Doc. 1); the Response (Doc. 14); the Report and Recommendation (Doc. 34); Petitioner’s objections (Doc. 37) and the objections by the Respondents (38).

13 Following an independent review of the pleadings, the Report and 14) Recommendation, the objections thereto, and the administrative record, the Court shall 15) adopt the findings of the Magistrate Judge.

16 IT IS THEREFORE ORDERED that the Report and Recommendation (Doc. 34) 17) is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by || this Court; 19 IT IS THEREBY ORDERED that the Petition Under 28 U.S.C. § 2254 for a Writ 20|| of Habeas Corpus (Doc. 1) is CONDITIONALLY GRANTED in accordance with the Report and Recommendation; 22 IT IS FURTHER ORDERED that this case is hereby DISMISSED; the Clerk of || Court is directed to enter judgment accordingly.

25 Dated this 29th day of July, 2020. □ 26 Q <6 i LAGE 27 Honorable Evank’R. Zapata 28 Senior United States District Judge _2-