Danner v. Ryan

Filing 22

ORDER ADOPTING 10 Report and Recommendation of the magistrate judge. The petition at (Doc. 1) is DENIED, and the petition is DISMISSED with prejudice. The Clerk will please close this case. This court concludes that Danner's second and fourth grounds are barred by a plain procedural bar as to which jurists of reason could not differ. This court further concludes that as to Danner's other grounds he has not made a substantial showing of denial of a constitutional right. For these reasons, this court declines to issue a certificate of appealability. If Danner desires to appeal this decision, he must apply to the Court of Appeals for the necessary certificate of appealability. Signed by Judge John W Sedwick on 6/16/11. (LSP)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

DARRELL CHRISTOPHER DANNER, )
)
Petitioner,
)
)
vs.
)
)
CHARLES RYAN, et al.,
)
)
Respondents.
)
)

2:09-cv-00191- JWS
ORDER FROM CHAMBERS
[Re:

Report at docket 10]

I. MOTION PRESENTED
Pursuant to 28 U.S.C. § 2254, petitioner Danner seeks a writ of habeas corpus.
At docket 10 Magistrate Judge Duncan filed a report recommending that the petition be
denied and dismissed with prejudice. After several extensions of time, Danner filed
objections at docket 21. Respondents did not reply to the objections. The matter is
now ripe for decision by this court.
II. STANDARD OF REVIEW
In a case of this type, the district court may “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate.”1 When reviewing a
magistrate judge’s report and recommendation in a case such as this one, the district

1

28 U.S.C. § 636(b)(1).

court conducts de novo review of all conclusions of law,2 and any findings of fact to
which objections have been made.3 Uncontested findings of fact are reviewed for clear
error.4
III. DISCUSSION
Having reviewed the file and applied the standard of review articulated above,
this court concludes that the magistrate judge has correctly found the facts and applied
the law. Danner’s objections are essentially a rehash of the contentions advanced in
his original 60-page petition. They are adequately addressed in the report from Judge
Duncan.
IV. CONCLUSION
For the reasons above, this court adopts the magistrate judge’s recommended
findings and conclusions. Based thereon, the petition at docket 1 is DENIED, and the
petition is DISMISSED with prejudice. The Clerk will please close this case.
This court concludes that Danner’s second and fourth grounds are barred by a
plain procedural bar as to which jurists of reason could not differ. This court further
concludes that as to Danner’s other grounds he has not made a substantial showing of
denial of a constitutional right. For these reasons, this court declines to issue a
certificate of appealability. If Danner desires to appeal this decision, he must apply to

2

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
3

28 U.S.C. § 636(b)(1).

4

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

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the Court of Appeals for the necessary certificate of appealability. See 28 U.S.C.
§ 2253(c)(2) and Fed. R. App. P. 22(b).
DATED this 16th day of June 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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