Fernandez #199651 v. Ryan et al

Filing 32

ORDER ACCEPTING REPORT AND RECOMMENDATION 30 . 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 pre judice. 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. (See document for further details). Signed by Judge Neil V Wake on 1/23/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Charles Fernandez, III,

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Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

No. CV-13-00355-PHX-NVW (MHB)
ORDER
AND
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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

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Magistrate Judge Michelle H. Burns (Doc. 30) 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 recommends that

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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R. (R&R at 12) (citing 28

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U.S.C. § 636(b)). Petitioner filed objections on January 22, 2014 (Doc. 31).

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The Court has considered the objections and reviewed the R&R de novo. See Fed.

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R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the Court must make a de novo

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determination of those portions of the Report and Recommendation to which specific

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objections are made). The Court agrees with the Magistrate Judge’s determinations,

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accepts the recommended decision within the meaning of Rule 72(b), Fed. R. Civ. P., and

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overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the district court

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“may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate”).

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IT IS THEREFORE ORDERED that the Report and Recommendation of the
Magistrate Judge (Doc. 30) is accepted.

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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.

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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.
Dated this 23rd day of January, 2014.

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