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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Roderick Tyler Kamalo, Petitioner, 10 11 vs. 12 Lance R. Hetmer, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-01138-PHX-FJM ORDER 15 16 The court has before it petitioner's petition for writ of habeas corpus pursuant to 28 17 U.S.C. § 2254 (doc. 1), respondents' limited answer (doc. 11), and the Report and 18 Recommendation of the United States Magistrate Judge (doc. 13). No objections to the 19 Report and Recommendation were filed and the time for doing so has expired. 20 The magistrate judge concluded that petitioner presented a mixed petition, in that he 21 presented exhausted and unexhausted claims. In this situation, we may dismiss the petition 22 or grant a stay. A stay and abeyance is only appropriate if petitioner had good cause for his 23 failure to exhaust and his claims are potentially meritorious. Rhines v. Weber, 544 U.S. 269, 24 278, 125 S. Ct. 1528, 1535 (2005). Petitioner has not filed a motion to stay and abey while 25 he exhausts his claim of actual innocence. The magistrate judge found that petitioner did not 26 have good cause for his failure to exhaust and his claim is not potentially meritorious. We 27 agree, and decline to stay consideration of the petition. 28 We "make a de novo determination of those portions of the [magistrate judge's] report 1 or specified proposed findings or recommendations to which objection is made." 28 U.S.C. 2 § 636(b)(1). We must "review the magistrate judge's findings and recommendations de novo 3 if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 4 (9th Cir. 2003). 5 recommendations made by the magistrate judge. Since no objections have been made, we accept in whole the 6 Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the 7 "district court must issue or deny a certificate of appealability when it enters a final order 8 adverse to the applicant." If a habeas petition is denied on procedural grounds without 9 reaching the merits, a certificate of appealability "should issue when the prisoner shows, at 10 least, that jurists of reason would find it debatable whether the petition states a valid claim 11 of the denial of a constitutional right and that jurists of reason would find it debatable 12 whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 13 473, 484, 120 S. Ct. 1595, 1604 (2000). The magistrate judge found, and we agree, that 14 jurists of reason would not find the correctness of our procedural ruling debatable. 15 IT IS ORDERED accepting the Report and Recommendation of the magistrate judge 16 (doc. 13) and DENYING the petition under 28 U.S.C. § 2254 for a writ of habeas corpus 17 (doc. 1). 18 IT IS FURTHER ORDERED DENYING a certificate of appealability. 19 DATED this 11th day of April, 2012. 20 21 22 23 24 25 26 27 28 -2-

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