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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Daisy Daniels,

 Petitioner,

vs.

Julie Frigo, et al.,

 Respondents.

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No. CV-15-01867-PHX-PGR (DKD)

 ORDER

 

 

Having reviewed de novo the Report and Recommendation of Magistrate

Judge Duncan (Doc. 30) in light of the petitioner’s objections to the Report and

Recommendation (Doc. 32), the Court overrules the petitioner’s objections and finds

that the Magistrate Judge correctly determined that the petitioner’s second amended

petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, must be

dismissed.

The Court agrees with the Magistrate Judge that the only federal habeas claim

that the petitioner properly exhausted, which is her claim in Ground Four that her

double jeopardy rights were violated when the State dismissed its direct complaint

against her and obtained a supervening indictment by the grand jury prior to her

preliminary hearing, is legally meritless. The petitioner is not entitled to habeas relief

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as to this issue because the Arizona Court of Appeals’ finding that there was no

double jeopardy violation inasmuch as the petitioner was only prosecuted once and

received only one sentence for the charged offense is not contrary to, or an

unreasonable application, of clearly established federal law as established by the

Supreme Court. 28 U.S.C. § 2254(d)(1). 

The Court also agrees with the Magistrate Judge that none of the petitioner’s

remaining claims were properly exhausted because they were not presented to the

Arizona Court of Appeals, and that she has not demonstrated either cause or

prejudice to excuse her procedural defaults or shown any miscarriage of justice, nor

has she established that she is actually innocent of the crime of aggravated assault

for which she was convicted.

Also pending before the Court is the petitioner’s Motion for TRO or Preliminary

Injunction (Doc. 29). Having reviewed the parties’ memoranda, which include the

petitioner’s affidavits in support of her motion (Docs. 31 and 37), the Court finds that

the motion must be denied. The petitioner, who is seeking to enjoin a prison contract

paralegal from failing to photocopy exhibits that the petitioner wants to file with the

Court in this action, conclusorily argues that the prison paralegal’s denial of

photocopying requests has jeopardized her habeas case. 

The Court concludes that the petitioner is not entitled to injunctive relief

because she has not demonstrated that she is likely to succeed on the merits of her

claim. Even if the petitioner is correct that the paralegal improperly refused to

photocopy some documents for the petitioner on the ground that the paralegal

believed that the documents were not relevant to this habeas action, nothing in any

of the petitioner’s submitted documents related to her motion demonstrate that any

of the allegedly non-copied documents would make any difference in the Court’s

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resolution of the petitioner’s habeas action given the grounds on which the Court is

denying the petition. Therefore,

IT IS ORDERED that the petitioner’s Motion for TRO or Preliminary Injunction

(Doc. 29) is denied.

IT IS FURTHER ORDERED that the Magistrate Judge’s Report and

Recommendation (Doc.30) is accepted and adopted by the Court.

IT IS FURTHER ORDERED that the petitioner’s [Second Amended] Petition

Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody

(Doc. 14) is denied and that this action is dismissed with prejudice.

IT IS FURTHER ORDERED that a certificate of appealability shall not issue

and that the petitioner is not entitled to appeal in forma pauperis because the

dismissal of the petition is justified by a plain procedural bar and reasonable jurists

would not find the procedural ruling debatable, and because the petitioner has not

made a substantial showing of the denial of a constitutional right.

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

accordingly.

DATED this 17th day of October, 2016.

Case 2:15-cv-01867-PGR Document 38 Filed 10/17/16 Page 3 of 3