Alcantar #163442 v. Ryan et al

Filing 21

ORDER that the Order (Doc. 15 ) and Judgment (Doc. 16 ) of June 3, 2015, are set aside. Petitioner's Motion for Evidentiary Hearing (Doc. 20 ) is denied. The Report and Recommendation of the Magistrate Judge (Doc. 14 ) is accepted and Petit ioner's Objections (Doc. 19 ) are overruled. The Clerk of the Court shall 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. 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 ruling debatable. Signed by Judge Neil V Wake on 8/18/15.(KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adam Alcantar,

No. CV-14-01221-PHX-NVW (MHB)
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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By prior order of June 3, 2015, this Court accepted the Report and

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Recommendation (“R&R”) of Magistrate Judge Michelle H. Burns (Doc. 14) issued

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April 30, 2015, regarding petitioner’s Petition for Writ of Habeas Corpus filed pursuant

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to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be denied and

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dismissed with prejudice.

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fourteen days to file objections to the R&R. (R&R at 12 (citing 28 U.S.C. § 636(b)(1);

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Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. No objection had been filed.

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Judgment was entered in favor of Respondent. (Doc. 16.)

The Magistrate Judge advised the parties that they had

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On June 8, 2015, Petitioner filed a Motion to Reopen (Doc. 17) on the basis that

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he had not received the Report and Recommendation. By order of June 16, 2015, the

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Court allowed Petitioner to file late Objections, which he did file on July 9, 2015. (Doc.

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19.) The Court grants Petitioner’s Motion to Reopen and treats those Objections as

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having been timely filed.

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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). 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”).
On July 9, 2015, Petitioner also filed a Motion for Evidentiary Hearing. (Doc.

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20.)

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Recommendation at the conclusion of the case. In any event, Petitioner shows no basis

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for further evidentiary hearing beyond the record in the state court.
IT IS THEREFORE ORDERED that the order (Doc. 15) and Judgment (Doc. 16)

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of June 3, 2015, are set aside.
IT IS FURTHER ORDERED that Petitioner’s Motion for Evidentiary Hearing

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That Motion is untimely, coming as it does in an objection to a Report and

(Doc. 20) is denied.

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IT IS FURTHER ORDERED that the Report and Recommendation of the

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Magistrate Judge (Doc. 14) is accepted and Petitioner’s Objections (Doc. 19) are

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overruled.

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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 U.S.C.

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§ 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 and Amended Petition for a Writ of Habeas Corpus, the

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Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on

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/ / /

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/ / /

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appeal are denied because dismissal of the petition is justified by a plain procedural bar

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and jurists of reason would not find the ruling debatable.

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Dated this 18th day of August, 2015.

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Neil V. Wake
United States District Judge

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