Kamalo v. Hetmer et al

Filing 15

ORDER accepting 13 Report and Recommendation of the magistrate judge and denying 1 petition under 28 U.S.C. § 2254 for a writ of habeas corpus. IT IS FURTHER ORDERED DENYING a certificate of appealability. Signed by Judge Frederick J Martone on 4/11/12. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Roderick Tyler Kamalo,
Petitioner,

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vs.

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Lance R. Hetmer, et al.,
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Respondents.
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No. CV 11-01138-PHX-FJM
ORDER

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The court has before it petitioner's petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 (doc. 1), respondents' limited answer (doc. 11), and the Report and

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Recommendation of the United States Magistrate Judge (doc. 13). No objections to the

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Report and Recommendation were filed and the time for doing so has expired.

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The magistrate judge concluded that petitioner presented a mixed petition, in that he

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presented exhausted and unexhausted claims. In this situation, we may dismiss the petition

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or grant a stay. A stay and abeyance is only appropriate if petitioner had good cause for his

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failure to exhaust and his claims are potentially meritorious. Rhines v. Weber, 544 U.S. 269,

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278, 125 S. Ct. 1528, 1535 (2005). Petitioner has not filed a motion to stay and abey while

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he exhausts his claim of actual innocence. The magistrate judge found that petitioner did not

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have good cause for his failure to exhaust and his claim is not potentially meritorious. We

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agree, and decline to stay consideration of the petition.

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We "make a de novo determination of those portions of the [magistrate judge's] report

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or specified proposed findings or recommendations to which objection is made." 28 U.S.C.

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§ 636(b)(1). We must "review the magistrate judge's findings and recommendations de novo

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if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003).

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recommendations made by the magistrate judge.

Since no objections have been made, we accept in whole the

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Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the

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"district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant." If a habeas petition is denied on procedural grounds without

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reaching the merits, a certificate of appealability "should issue when the prisoner shows, at

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least, that jurists of reason would find it debatable whether the petition states a valid claim

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of the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S.

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473, 484, 120 S. Ct. 1595, 1604 (2000). The magistrate judge found, and we agree, that

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jurists of reason would not find the correctness of our procedural ruling debatable.

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IT IS ORDERED accepting the Report and Recommendation of the magistrate judge

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(doc. 13) and DENYING the petition under 28 U.S.C. § 2254 for a writ of habeas corpus

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(doc. 1).

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IT IS FURTHER ORDERED DENYING a certificate of appealability.

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DATED this 11th day of April, 2012.

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