Parshall v. Ryan et al

Filing 17

ORDER that the Court adopts the 14 Report and Recommendation of the Magistrate Judge. ORDERED that Petitioner's Petition for Writ of Habeas Corpus is DENIED, terminating this case. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. Signed by Senior Judge Stephen M McNamee on 8/22/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Rand Parshall,

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Petitioner,
vs.

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Charles L. Ryan, et al.,

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Respondents.

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No. CV-12-1647-PHX-SMM (MEA)

MEMORANDUM OF DECISION
AND ORDER

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Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254. (Doc. 1.) The matter was referred to Magistrate Judge Mark E. Aspey

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for a Report and Recommendation. (Doc. 3.) On April 23, 2013, the Magistrate Judge filed

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a Report and Recommendation with this Court. (Doc. 14.) On May 8, 2013, Petitioner

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requested additional time to file objections, which was granted. (Docs. 15, 16.) To date, no

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objections have been filed.

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STANDARD OF REVIEW

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The Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan,

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923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service of a copy

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of the Magistrate’s recommendation within which to file specific written objections to the

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Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Petitioner requested and was provided

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additional time to file his objections to the report. Petitioner’s failure to object to a

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Magistrate Judge’s recommendation relieves the Court of conducting de novo review of the

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Magistrate Judge’s factual findings and waives all objections to those findings on appeal.

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See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate

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Judge’s conclusion “is a factor to be weighed in considering the propriety of finding waiver

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of an issue on appeal.” Id.

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DISCUSSION

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Having reviewed the thorough Report and Recommendation of the Magistrate Judge,

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and no Objections having been made by any party thereto, the Court hereby incorporates and

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adopts the Magistrate Judge’s Report and Recommendation denying relief.

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The standard for this Court to issue a Certificate of Appealability (“COA”) is whether

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the applicant has “made a substantial showing of the denial of a constitutional right .” 28

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U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Section 2254 Cases. “Where a

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district court has rejected the constitutional claims on the merits, the showing required to

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satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists

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would find the district court’s assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas

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petition on procedural grounds without reaching the prisoner’s underlying constitutional

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claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find

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it debatable whether the petition states a valid claim of the denial of a constitutional right and

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that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling.” Id.

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CONCLUSION

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Accordingly, based on the reasons set forth,

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IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation

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of the Magistrate Judge. (Doc. 14.)

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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus

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is DENIED, terminating this case. The Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are DENIED because Petitioner has not made a

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substantial showing of the denial of a constitutional right regarding his ineffective assistance

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of counsel claims. In addition, the dismissal of his remaining claims was justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable.

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DATED this 22nd day of August, 2013.

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