Helms v. Ryan et al

Filing 14

ORDER ADOPTING 12 the Magistrate Judge's Report and Recommendation. Petitioner's requests for an evidentiary hearing, discovery, and the appointment of counsel are denied. 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. 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 and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief. Signed by Judge Neil V Wake on 10/29/15. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-14-01876-PHX-NVW (ESW)

Monty L. Helms,

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Petitioner,

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ORDER

v.
Charles L. Ryan; et al.,

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

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Magistrate Judge Eileen S. Willett (Doc. 12) 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 24 (citing 28

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U.S.C. § 636(b)(1)); Fed. R. Civ. P. 6, 72. Petitioner filed objections on October 19,

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2015 (Doc. 13).

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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
or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc.12) is accepted.
IT IS FURTHER ORDERED that Petitioner’s requests for an evidentiary hearing,
discovery, and the appointment of counsel are denied.
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
and leave to proceed in forma pauperis on appeal are denied because dismissal of the
Petition is justified by a plain procedural bar and Petitioner has not made a substantial
showing of the denial of a constitutional right in his remaining claims for relief.
Dated this 29th day of October, 2015.

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Neil V. Wake
United States District Judge

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