Tucker v. Ryan et al

Filing 26

ORDER that Report and Recommendation of the Magistrate Judge (Doc. 24 ) is accepted. FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 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. Signed by Judge Neil V Wake on 12/17/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-12-01912-PHX-NVW

Milton Lee Tucker,

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Petitioner,

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ORDER

vs.
Charles L. Ryan; Attorney General of the
State of Arizona,

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Respondents.

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

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Magistrate Judge Anderson, (Doc. 24), regarding petitioner’s Petition for Writ of Habeas

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

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Petition be denied as untimely. The Magistrate Judge advised the parties that they had

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fourteen days to file objections to the R&R. (Doc. 24 at 11 (citing 28 U.S.C. § 636(b)).

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Petitioner filed objections on December 13, 2013. (Doc. 25).

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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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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. No reasonable jurist would find the procedural ruling debatable.
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 24) is accepted.
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to
proceed in forma pauperis on appeal are denied.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
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.
Dated this 17th day of December, 2013.

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