Samaniego v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION. The 16 Amended Report and Recommendation is accepted; the Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus 1 with prejudice; the Clerk shall terminate this action; the Court finds that the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable; accordingly, a Certificate of Appealability and leave to proceed in forma pauperis on appeal will be denied; denying Petitioner's 20 Request for Certificate of Appealability. Signed by Judge Neil V Wake on 1/27/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frank Samaniego,
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 11-00426-PHX-NVW (ECV)
ORDER

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Before the Court is the Amended Report and Recommendation (“R&R”) of Magistrate

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Judge Voss (Doc. 16) 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 7 (citing 28 U.S.C. § 636(b)(1)). On

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January 25, 2012, Petitioner filed an objection to the R&R (Doc. 19) and a motion requesting

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a certificate of appealability (Doc. 20).

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The Court has considered the Petitioner’s 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 Fed. R. Civ. P. 72(b), and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that the Amended Report and Recommendation of
the Magistrate Judge (Doc. 16) 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.

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Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court finds that the Petition
is justified by a plain procedural bar and jurists of reason would not find the procedural
ruling debatable. Accordingly, Certificate of Appealability and leave to proceed in forma
pauperis on appeal will be denied.
IT IS THEREFORE ORDERED that Petitioner’s Request for Certificate of
Appealability (Doc. 20) is denied.
DATED this 27th day of January, 2012.

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