Cook #247620 v. Ryan et al

Filing 29

ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS: IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 25 ) is accepted. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment de nying 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 the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge Neil V Wake on 12/07/2015. (REK)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

No. CV-14-02395-PHX-NVW (JZB)

Donald Lee Cook,

10

Petitioner,

11

v.

12

Charles L. Ryan, et al.,

13
14

Respondents.

ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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

15

Magistrate Judge John Z. Boyle (Doc. 25) regarding petitioner’s Petition for Writ of

16

Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that

17

the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

18

parties that they had fourteen days to file objections to the R&R. (R&R at 13 (citing 28

19

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

20

December 3, 2015 (Doc. 28).

21

The Court has considered the objections and reviewed the Report and

22

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

23

the court must make a de novo determination of those portions of the Report and

24

Recommendation to which specific objections are made). The Court agrees with the

25

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

26
27
28

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

1
2
3
4
5
6
7
8
9
10
11
12
13

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. 25) 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
and leave to proceed in forma pauperis on appeal are denied because the dismissal of the
Petition is justified by a plain procedural bar and jurists of reason would not find the
procedural ruling debatable.
Dated this 7th day of December, 2015.

14
15
16
Neil V. Wake
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28

-2