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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Herman Joe Aguilar, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-18-00635-PHX-NVW-DMF

ORDER 

and 

DENIAL OF CERTIFICATE OF 

APPEALABILITY AND IN FORMA 

PAUPERIS STATUS

Pending before the Court is the Report and Recommendation (“R&R”) of 

Magistrate Judge Deborah M. Fine (Doc. 13) regarding petitioner’s Petition for Writ of 

Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that 

the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the 

parties that they had fourteen days to file objections to the R&R. (R&R at 11 (citing United 

States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner filed objections on 

February 13, 2019 (Doc. 21) and Respondents filed a reply on February 15, 2019 (Doc. 

22). 

The Court has considered the objections and reply and reviewed the Report and 

Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that 

the court must make a de novo determination of those portions of the Report and 

Recommendation to which specific objections are made). The Court agrees with the 

Magistrate Judge’s determinations, accepts the recommended decision within the meaning 

of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 
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636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, 

the findings or recommendations made by the magistrate”). 

The Court adds alternatively that the Petition is unmeritorious because Petitioner 

pleaded guilty to the crime of child molestation. The decision in May v. Ryan, 245 

F.Supp.3d 1145 (D. Ariz.), on which Petitioner relies, was based on a trial, at which the 

jury first announced itself hung based on inability to agree on whether the burden of proof 

was carried. Misallocation of burden of proof at trial does not have anything to do with a 

guilty plea, in which the Defendant admits to the crime. Also, the federal habeas petition 

in May was promptly filed after conclusion of the state case and therefor was timely without 

need for an exception or tolling of the federal one-year limit. 

IT IS THEREFORE ORDERED that Report and Recommendation of the 

Magistrate Judge (Doc. 13) is accepted. 

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 

and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 

§ 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. 

A certificate of appealability is denied because appellant has not shown that “jurists 

of reason would find it debatable whether the petition states a valid claim of the denial of 

a constitutional right and that jurists of reason would find it debatable whether the district 

court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); 

see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012); Miller-El 

v. Cockrell, 537 U.S. 322, 327 (2003). 

Dated this 20th day of February, 2019.