Hernandez v. Ryan et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION and DenIAL OF CERTIFICATE OF APPEALABILITY. The Report and Recommendation of the Magistrate Judge 15 is accepted; the Clerk shall enter judgment denying Petitioner's Petition for Writ of Habeas Corpus [ 1] with prejudice; the Clerk shall terminate this action; 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. Signed by Judge Neil V Wake on 1/30/15. (REW)

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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-13-01801-PHX-NVW (JZB)

Roberto Hernandez,

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Petitioner,

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v.

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Charles L. Ryan, et al.,

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Respondents.

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 John Z. Boyle (Doc.15) 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 24, 25 (citing

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28 U.S.C. § 636(b)). Petitioner filed objections on January 28, 2015 (Doc. 18).

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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). Petitioner objects that he was

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not able to file a reply brief because he was in segregation. That objection is harmless

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because Petitioner has been able to state whatever he wishes in his Objections (Doc. 18).

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The Court has considered the Objections to the same extent as if they had been filed
before the Magistrate Judge prepared the Report and Recommendation. Even with the

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benefit of Petitioner’s additional argument, the Court agrees with the Magistrate Judge’s
determinations, accepts the recommended decision within the meaning of Rule 72(b),
Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating
that the district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that the Report and Recommendation of the
Magistrate Judge (Doc. 15) is accepted.
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.
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 dismissal of the
Petition is justified by a plain procedural bar.
Dated this 30th day of January, 2015.

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Neil V. Wake
United States District Judge

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