Morning v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION and Denying Certificate of Appealability and In Forma Pauperis Status. The 14 Report and Recommendation is accepted; the Clerk shall enter judgment denying and dismissing Petitioner's 1 Petition for W rit of Habeas Corpus filed pursuant to 28 U.S.C.§ 2254 with prejudice; the Clerk shall terminate this action; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied; Petitioner has procedurally defaulted, and has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 7/10/12. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leon Calloway Morning,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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No. CV 12-00001-PHX-NVW (MHB)
ORDER
AND
CERTIFICATE OF APPEALABILITY
AND IN FORMA PAUPERIS STATUS

Respondents.

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Pending before the court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Michelle H. Burns (Doc. 14) regarding petitioner’s Petition for Writ of

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Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that

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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R. (R&R at 13 (citing 28

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U.S.C. § 636(b)). Petitioner filed objections on July 6, 2012. (Doc. 15.)

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The court has considered the 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

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the 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

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meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28

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U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 14) is accepted.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

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and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§ 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

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denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate

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of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner

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has procedurally defaulted, and has not made a substantial showing of the denial of a

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constitutional right.
Dated this 10th day of July, 2012.

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