Eftenoff v. Ryan et al

Filing 51

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Thomas Eftenoff,
Petitioner,

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No. CV-14-01023-PHX-NVW (MHB)

v.

ORDER
and

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
PAUPERIS STATUS

Respondents.

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

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Magistrate Judge Michelle H. Burns (Doc. 47) 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 32 (citing 28

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U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Petitioner

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filed objections on December 14, 2015 (Doc. 48). Respondents filed a response to

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Petitioner’s objections on December 28, 2015 (Doc. 50).

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The Court has considered the objections and responses and reviewed the Report

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and Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating

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that 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). The Court agrees with the

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Magistrate Judge’s determinations, accepts the recommended decision within the

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meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28

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

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

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 47) is accepted.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

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and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28

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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

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denying Petitioner’s Petition for a Writ of Habeas Corpus, a Certificate of Appealability

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is denied because dismissal of the Petition is justified by a plain procedural bar

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(Petitioner’s Claims 4a, 4c, 7a), procedural default (Claim 8b), or lack of a substantial

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showing of the denial of a constitutional right (Claims 7d, 8a) upon which reasonable

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jurists would disagree.

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Dated this 25th day of April, 2016.

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Neil V. Wake
United States District Judge

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