Cole v. Ryan et al

Filing 12

ORDER FROM CHAMBERS - this court adopts Magistrate Judge Burns' recommendations at docket 11. Based thereon, the petition at docket 1 is DENIED. The Clerk will please enter judgment dismissing the petition with prejudice. IT IS FURTHER ORDERED THAT this court will not grant the Certificate of Appealability required by 28 U.S.C. § 2253(c), nor will it grant leave to proceed on appeal in forma pauperis, because dismissal of the petition is clearly warranted by a plain procedural bar, an d jurists of reason would not find the procedural bar debatable. If petitioner desires to take an appeal, he must request a Certificate of Appealabilty from the Court of Appeals. See Fed. R. App. P. 22(b)(1). by Judge John W Sedwick on 9/12/2011. (KMG)

MINUTES OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jerry Lee Cole v. Charles L. Ryan, et al
THE HONORABLE JOHN W. SEDWICK

2:10-cv-1913 JWS

PROCEEDINGS:

September 12, 2011

ORDER FROM CHAMBERS

Jerry Lee Cole (“petitioner”) moved for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. The matter was briefed. Thereafter, in a report at docket 11, Magistrate
Judge Michelle Burns recommended that the petition be denied and dismissed with
prejudice. Petitioner has not filed any objections to the report.
This court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). When reviewing a
magistrate judge’s recommendations in a case such as this one, this court conducts de
novo review of all recommended conclusions of law, and any recommended findings of
fact to which objections have been taken. Recommended findings of fact as to which
no objection has been taken are reviewed for clear error. Having applied those
standards of review, this court finds that the recommended findings of fact and
conclusions of law are correct in all material respects. Accordingly, this court adopts
Magistrate Judge Burns’ recommendations at docket 11. Based thereon, the petition at
docket 1 is DENIED. The Clerk will please enter judgment dismissing the petition with
prejudice.
IT IS FURTHER ORDERED THAT this court will not grant the Certificate of
Appealability required by 28 U.S.C. § 2253(c), nor will it grant leave to proceed on
appeal in forma pauperis, because dismissal of the petition is clearly warranted by a
plain procedural bar, and jurists of reason would not find the procedural bar debatable.
If petitioner desires to take an appeal, he must request a Certificate of Appealabilty from
the Court of Appeals. See Fed. R. App. P. 22(b)(1).
______________