Morning v. Ryan et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Leon Calloway Morning,
Charles L. Ryan, et al.,
No. CV 12-00001-PHX-NVW (MHB)
CERTIFICATE OF APPEALABILITY
AND IN FORMA PAUPERIS STATUS
Pending before the court is the Report and Recommendation (“R&R”) of
Magistrate Judge Michelle H. Burns (Doc. 14) regarding petitioner’s Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
parties that they had fourteen days to file objections to the R&R. (R&R at 13 (citing 28
U.S.C. § 636(b)). Petitioner filed objections on July 6, 2012. (Doc. 15.)
The court has considered the objections and reviewed the Report and
Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that
the court must make a de novo determination of those portions of the Report and
Recommendation to which specific objections are made). The court agrees with the
Magistrate Judge’s determinations, accepts the recommended decision within the
meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28
U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 14) 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.
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: 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
Dated this 10th day of July, 2012.
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