Aguilera-Guerra v. Ryan et al

Filing 18

ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY that Report and Recommendation of the Magistrate Judge 10 is accepted. ORDER that the Clerk of the Court enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus pursuant to 28:2254 1 with prejudice. The Clerk shall terminate this action. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. Signed by Judge Neil V Wake on 3/14/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Jamie Aguilera-Guerra,

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Petitioner,

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vs.

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Charles L. Ryan, et al.,

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No. CV-12-00258-NVW-PHX
ORDER
AND
DENIAL OF CERTIFICATE OF
APPEALABILITY

Respondents.

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

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Magistrate Judge Bridget S. Bade (Doc. 10) 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 finds that the

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Petition is untimely and recommends that it be denied and dismissed with prejudice. The

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Magistrate Judge advised the parties that they had fourteen days to file objections to the

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R&R. (R&R at P. 21 (citing 28 U.S.C. § 636(b)). Petitioner filed objections on March

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13, 2013 (Doc. 17).

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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
or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 10) 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, a Certificate of Appealability
and leave to proceed in forma pauperis on appeal are denied because of plain procedural
bar and because Petitioner has not made a substantial showing of the denial of a
constitutional right has been made.
Dated this 14th day of March, 2013.

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