Ponsart #126180 v. Ryan et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION. It is ordered that Magistrate Judge Duncan's R&R 26 is accepted and adopted as the order of this Court; that the second amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 [19 ] is denied and dismissed with prejudice. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable (see attached PDF for further details). Signed by Judge Diane J Humetewa on 7/30/2015. (ACL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Ponsart,

No. CV-13-1077-PHX-DJH
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s second amended Petition for Writ

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of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254 (Doc. 19) and the Report

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and Recommendation (“R&R”) issued by United States Magistrate Judge David K.

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Duncan (Doc. 26). Pursuant to a plea agreement, Petitioner pled no contest to, and was

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convicted of, one count of attempted molestation of a child under 15. (Doc. 26 at 1-2).

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Though he was initially sentenced to lifetime probation, he was later sentenced to 15

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years in prison after his probation was revoked, the maximum term allowed under the

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plea agreement. (Doc. 26 at 2). Petitioner raised only one claim for relief in the Petition,

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asserting that the trial court judge erroneously found aggravating factors that enhanced

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his prison sentence. (Doc. 26 at 3). After consideration of the issues, Judge Duncan

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concluded that Petitioner failed to exhaust his state court remedies for the claim asserted

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in this action, and that he is now barred from doing so. (Doc. 26 at 4-5). Accordingly,

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Judge Duncan recommends the Petition be denied and dismissed with prejudice. (Doc.

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26 at 5).

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

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that the failure to file timely objections "may result in the acceptance of the Report and

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Recommendation by the district court without further review." (Doc. 26 at 5) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The

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parties have not filed objections and the time to do so has expired.

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

Absent any

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.”);

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Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Duncan's R&R (Doc. 26) is accepted

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and adopted as the order of this Court.

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IT IS FURTHER ORDERED that the second amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 19) is denied and dismissed with

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prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because dismissal of the Petition is justified by a plain procedural

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

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 30th day of July, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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