Hernandez-Roque v. Ryan et al

Filing 19

ORDER ACCEPTING AND ADOPTING 18 Magistrate Judge Willett's Report and Recommendation as an Order of this Court. ORDERED that the Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petition is justified, in part, because reas onable jurists could not find that the Court's determination that Petitioner is not entitled to relief debatable, wrong, or deserving of encouragement to proceed further. Clerk of Court shall terminate this action and enter judgment accordingly. See document for details. Signed by Judge Diane J Humetewa on 6/14/16. (EJA)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jorge Hernandez-Roque,

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Petitioner,

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ORDER

v.

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No. CV-14-01814-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on pro se Petitioner’s Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation

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(“R&R”) (Doc. 18) of United States Magistrate Judge Eileen S. Willett, filed on May 27,

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2016. The Petitioner asserts four grounds for relief based upon the alleged ineffective

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assistance of his trial counsel. After a thorough and sound analysis, Judge Willett found

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all four grounds were meritless. Judge Willett thus recommends denial of the Petition

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and dismissal with prejudice.

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In so recommending, Judge Willett explicitly advised the parties that they had

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“fourteen days from the date of service of a copy of” the R&R “within which to file

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specific written objections with the Court.” (Doc. 18 at 15:25-26) (citations omitted).

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Judge Willett further explicitly advised that “[f]ailure to file timely objections to the”

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R&R “may result in the acceptance of the [R&R] by the District Court without further

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review.” (Id. at 15:28-16:1-2). Judge Willett was equally explicit that “[f]ailure to file

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timely objections to any factual determination of the Magistrate Judge may be considered

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a waiver of a party’s right to appellate review of the findings of fact in an order or

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judgment entered pursuant to the” R&R. (Id. at 16:2-5) (citations omitted).

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In accordance with the foregoing, the parties had until June 13, 2016 by which to

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timely file objections to the R&R.

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R, deny the Petition and

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dismiss this matter with prejudice. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court

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may accept, reject, or modify, in whole or in part, the findings or recommendations made

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by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

IT IS ORDERED that Magistrate Judge Willett’s R&R (Doc. 18) is accepted

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and adopted as an Order of this Court.
IT IS FURTHER ORDERED that the Petition for Habeas Corpus pursuant to 28

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U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Absent any timely

Accordingly,

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The parties did not do so.

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis
on appeal are DENIED because dismissal of the Petition is justified, in part, because
reasonable jurists could not find that the Court’s determination that Petitioner is not
entitled to relief debatable, wrong, or deserving of encouragement to proceed further.
See Miller-El v. Cockrell, 537 U.S. 322, 326 (2003). Petitioner also has not made the
required substantial showing of the denial of a constitutional right. See id. (citing 28
U.S.C. § 2253(c)(2)).
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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 14th day of June, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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