Wathogoma v. Ryan et al

Filing 14

ORDER that the Court ACCEPTS the 13 Report and Recommendation. ORDERED that the Petition for Habeas Corpus is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. The Clerk of Court shall enter a final judgment accordingly. Signed by Judge Sharon L Gleason on 4/7/2014. (LFIG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

GAYLENE JODIE WATHOGOMA,
Petitioner,
vs.
CHARLES L. RYAN, et al.,
Case No. 2:12-cv-02686-PHX-SLG
Respondents.

ORDER DENYING PETITION FOR HABEAS CORPUS
Before the Court at Docket 1 is the Petition for Writ of Habeas Corpus filed by
Petitioner Gaylene Jodie Wathogoma pursuant to 28 U.S.C. § 2254. An Answer to the
Petition was filed at Docket 10. On February 26, 2014, at Docket 13, Magistrate Judge
David K. Duncan issued a Report and Recommendation.

The Magistrate Judge

evaluated each of Ms. Wathogoma’s claims on its merits, as it is undisputed that Ms.
Wathogoma properly exhausted these claims by raising them in state court. After a
thoughtful and thorough analysis, the Magistrate Judge recommended that the petition
be denied and that this action be dismissed with prejudice. Neither party has filed
objections to the Report and Recommendation.

The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”1 The court is to “make
a de novo determination of those portions of the [magistrate judge’s] report or specified
proposed findings or recommendations to which objection is made.” 2 But when no
objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a
district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.” 3
There being no objections, and following this Court’s review of the Report and
Recommendation. the Court hereby ACCEPTS the Report and Recommendation of
Magistrate Judge David Duncan.
Accordingly, IT IS ORDERED that the Petition for Habeas Corpus is DISMISSED
WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED
because Ms. Wathogoma has not “made a substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. § 2253(c)(2). 4

1

28 U.S.C. § 636(b)(1).

2

Id.

3

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”).

4

See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of appealability may be granted
only if the applicant has made “a substantial showing of the denial of a constitutional right,” i.e.,
a showing that “reasonable jurists could debate whether . . . the petition should have been
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Order Denying Petition for Habeas Corpus
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The Clerk of Court shall enter a final judgment accordingly.
Dated this 7th day of April, 2014.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further” (internal quotation marks and citations omitted)).

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Order Denying Petition for Habeas Corpus
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