Rivera v. Ryan et al

Filing 14

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 13 . ORDER that the petitioner's Petition Under 28:2254 for a Writ of Habeas Corpus is denied and that this action is dismissed with prejudice. ORDER that a certificate of appealability shall not be issued and that leave to appeal in forma pauperis is denied. ORDER that the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 7/8/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Abelardo Rivera, Jr.,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondents.

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No. CV-11-01935-PHX-PGR (ECV)
ORDER

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Having reviewed de novo the Report and Recommendation of Magistrate

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Judge Voss notwithstanding that no party has filed any objections to the Report and

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Recommendation, the Court finds that the Magistrate Judge correctly determined

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that the petitioner’s Petition for a Writ of Habeas Corpus, timely filed pursuant to 28

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U.S.C. § 2254, should be denied with prejudice.

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The Court agrees with the Magistrate Judge that the single claim raised by the

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petitioner, which is that the state trial court committed fundamental constitutional

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error in denying a mistrial based on a prosecution witness’ improper testimony, is

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procedurally defaulted because the petitioner failed to exhaust the claim by

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presenting it to the state courts at all levels of review in a procedurally proper

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manner. The Court further agrees that the petitioner has not shown any cause for

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the procedural default or any resulting prejudice, nor has he shown any fundamental

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miscarriage of justice; furthermore, he does not contend that he is actually innocent

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of the aggravated DUI and disorderly conduct crimes of which he was convicted.

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Therefore,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc.13) is accepted and adopted by the Court.
IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C.

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§ 2254 for a Writ of Habeas Corpus by a Person in State Custody is denied and that

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this action is dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability shall not be

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issued and that leave to appeal in forma pauperis is denied because the petitioner

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has not made a substantial showing of the denial of a constitutional right.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 8th day of July, 2013.

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