Ortiz v. Shinn

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

9 Nery Efrain Blas Ortiz, No. CV-19-05455-PHX-JJT (DMF) 10 Petitioner, ORDER v. Charles L. Ryan, et al., 13 Respondents.

15 At issue is the Report and Recommendation submitted by United States Magistrate Judge Deborah M. Fine (Doc. 17, “R&R”) recommending that the Court deny the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus (Doc. 1). Petitioner timely filed Objections to the R&R (Doc. 20) and Respondents filed a Response to those Objections (Doc. 22). Petitioner filed a Reply to that Response (Doc. 23) which Respondents then moved to strike (Doc. 24).

21 Petitioner’s sole ground for his Petition was insufficiency of evidence from which a jury could find him guilty of the three murder charges. Judge Fine correctly stated the standard of review on this ground, and Petitioner does not argue otherwise. In his Objection, he simply disagrees with Judge Fine’s conclusion that “the evidence does not support a conclusion that no rational trier of fact could have found Petitioner guilty beyond a reasonable doubt.” (R&R at 11.) Rather, Petitioner argues that the above conclusion is in error because “Petitioner believes that a rational trier of fact could have found him not guilty beyond a reasonable doubt.” (Doc. 20 at 2.)

1 But that’s not the standard. The standard is as Judge Fine set forth, and quoted 2|| immediately above. And the law is that where a jury could find a defendant either guilty or || not guilty based on the evidence before it, this Court must presume for purposes of habeas review “that the trier of fact resolved any such conflicts in favor of the prosecution and 5|| must defer to that resolution.” Jackson v. Virginia, 442 U.S. 307, 326 (1979). Under the || deferential review of habeas, evidence that could lead to a finding of guilty or a finding of || not guilty is not “insufficient.” Only evidence from which no rational trier of fact could || find a defendant guilty beyond a reasonable doubt will satisfy the standard Petitioner needs to meet here. And the instant evidence does not meet that standard.

10 IT IS ORDERED overruling Petitioner’s Objection (Doc. 20) and adopting in whole the R&R (Doc. 17).

12 IT IS FURTHER ORDERED denying the Petition Under 28 U.S.C. § 2254 for Writ || of Habeas Corpus (Doc. 1) and denying as moot Respondent’s “Motion to Strike Petitioner’s Sur-Reply (Doc. 24).

15 IT IS FURTHER ORDERED denying a certificate of appeal ability and motion to || proceed in forma pauperis. Petitioner has not made a substantial showing of a denial of a || constitutional right. The Court finds that jurists of reason would not find its assessment of || Petitioner’s constitutional claims to be “debatable or wrong” under Slack v. McDaniel, 529 U.S. 473, 484 (2000).

20 Dated this 27th day of May, 2021. CN 21 “wok: Unig State@District Judge _2-