McClelland v. Ryan et al

Filing 20

ORDER AND CERTIFICATE OF APPEALBILITY AND INFORMA PAUPERIS STATUS - that the 18 Report and Recommendation of the Magistrate Judge is accepted; that the Clerk entery judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpu s filed pursuant to 28 U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioners Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 07/18/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert John McClelland,
Petitioner,

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v.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-10-00764-PHX-NVW (JRI)
ORDER
and
CERTIFICATE OF APPEALABILITY
AND IN FORMA PAUPERIS STATUS

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

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Judge Jay R. Irwin (Doc. 18) regarding petitioner’s Petition for Writ of Habeas Corpus filed

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pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be denied

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and dismissed with prejudice. The Magistrate Judge advised the parties that they had

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fourteen days to file objections to the R&R. (R&R at 13–14 (citing Rule 72(b), Federal

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Rules of Civil Procedure, and Rule 8(b), Rules Governing Section 2254 Proceedings).)

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Petitioner filed objections on July 8, 2011. (Doc. 19.)

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The court has considered the objections and reviewed the Report and

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

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

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

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

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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,

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the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate
Judge (Doc. 18) is accepted.

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

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dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254

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

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of

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Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner has

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not made a substantial showing of the denial of a constitutional right.
DATED this 18th day of July, 2011.

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