Camargo v. Ryan et al

Filing 40

ORDER ADOPTING 38 Report and Recommendation of the Magistrate Judge. IT IS FURTHER ORDERED that the court's March 9, 2015 order (Doc. 26 ) temporarily vacating its March 4, 2015 order (Doc. 23 ) and the Clerk's Judgment (Doc. 24 ) is vacated. The court's March 4, 2015 order (Doc. 23 ) adopting the Magistrate Judge's initial Report and Recommendation (Doc. 19 ) is reinstated. The Clerk shall enter judgment denying and dismissing Petitioner's First Amended Petit ion for Writ of Habeas Corpus (Doc. 6 ). A certificate of appealability is granted on the following questions: (1) whether Petitioner's federal habeas petition should be considered timely under 28 U.S.C. § 2244(d), (2) whether Petitioners Fifth, Sixth, and Fourteenth Amendment rights were violated by the "constructive denial of the right to counsel," and (3) whether Petitioners Fifth, Sixth, and Fourteenth Amendment rights were violated by his PCR counsel's failure to raise the trial court's constructive denial of Petitioner's right to effective assistance of counsel. The certificate of appealability shall not certify any other questions (Ninth Circuit Case Number: 15-15622). Signed by Judge Neil V Wake on 5/4/15. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alfredo Camargo,

No. CV-13-02488-PHX-NVW
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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Before the court is the Report and Recommendation (“R&R”) of Magistrate Judge

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James Metcalf (Doc. 38) regarding petitioner’s First Amended Petition for Writ of

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Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. 6). The R&R recommends that

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a certificate of appealability be issued. The Magistrate Judge advised the parties that they

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had fourteen days to file objections to the R&R. Respondents filed objections on April

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28, 2015. (Doc. 39.)

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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 R&R to which specific objections are made). The

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court agrees with the Magistrate Judge’s determinations, accepts the recommended

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decision within the meaning of Rule 72(b), and overrules Respondents’ objections. See

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28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in

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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. 38) is accepted.

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IT IS FURTHER ORDERED that the court’s March 9, 2015 order (Doc. 26)

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temporarily vacating its March 4, 2015 order (Doc. 23) and the Clerk’s Judgment (Doc.

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24) is vacated.

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IT IS FURTHER ORDERED that the court’s March 4, 2015 order (Doc. 23)

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adopting the Magistrate Judge’s initial Report and Recommendation (Doc. 19) is

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reinstated.

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IT IS FURTHER ORDERED that the Clerk enter judgment denying and
dismissing Petitioner’s First Amended Petition for Writ of Habeas Corpus (Doc. 6).

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IT IS FURTHER ORDERED that a certificate of appealability is granted on the

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following questions: (1) whether Petitioner’s federal habeas petition should be considered

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timely under 28 U.S.C. § 2244(d), (2) whether Petitioner’s Fifth, Sixth, and Fourteenth

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Amendment rights were violated by the “constructive denial of the right to counsel,” and

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(3) whether Petitioner’s Fifth, Sixth, and Fourteenth Amendment rights were violated by

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his PCR counsel’s failure to raise the trial court’s constructive denial of Petitioner’s right

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to effective assistance of counsel. The certificate of appealability shall not certify any

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other questions.

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Dated this 4th day of May, 2015.

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Neil V. Wake
United States District Judge

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