Eftenoff v. Ryan et al
ORDER ADOPTING REPORT AND RECOMMENDATION, the Report and Recommendation of the Magistrate Judge 47 is accepted; the Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. & #167; 2254 1 with prejudice; the Clerk shall terminate this action; a Certificate of Appealability is denied because dismissal of the Petition is justified by a plain procedural bar (Petitioners Claims 4a, 4c, 7a), procedural default (Claim 8b), or lack of a substantial showing of the denial of a constitutional right (Claims 7d, 8a) upon which reasonable jurists would disagree. Signed by Judge Neil V Wake on 4/25/16. (REW)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Brian Thomas Eftenoff,
No. CV-14-01023-PHX-NVW (MHB)
Charles L. Ryan, Director of the
Department of Corrections; The Attorney
General of the State of Arizona,
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
Pending before the Court is the Report and Recommendation (“R&R”) of
Magistrate Judge Michelle H. Burns (Doc. 47) regarding petitioner’s Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
parties that they had fourteen days to file objections to the R&R. (R&R at 32 (citing 28
U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Petitioner
filed objections on December 14, 2015 (Doc. 48). Respondents filed a response to
Petitioner’s objections on December 28, 2015 (Doc. 50).
The Court has considered the objections and responses and reviewed the Report
and Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating
that the court must make a de novo determination of those portions of the Report and
Recommendation to which specific objections are made). 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 Report and Recommendation of the
Magistrate Judge (Doc. 47) is accepted.
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.
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
is denied because dismissal of the Petition is justified by a plain procedural bar
(Petitioner’s Claims 4a, 4c, 7a), procedural default (Claim 8b), or lack of a substantial
showing of the denial of a constitutional right (Claims 7d, 8a) upon which reasonable
jurists would disagree.
Dated this 25th day of April, 2016.
Neil V. Wake
United States District Judge
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