Stokes v. Ryan et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION: the Report and Recommendation of the Magistrate Judge 23 is accepted; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justifie d by plain procedural bar or lack of any violation of constitutional right and jurists would not find the rulings debatable; the Clerk enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus 1 with prejudice; the Clerk shall terminate this action. Signed by Judge Neil V Wake on 5/2/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Leon Stokes II,

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Petitioner,

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v.

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Charles L. Ryan; Attorney General of the
State of Arizona,

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No. CV-15-00360-PHX-NVW (DKD)
ORDER
and
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 David K. Duncan (Doc. 23) 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 finds that

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Petitioner is not eligible for relief on any of his claims and, therefore, recommends that

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his Petition be denied and dismissed with prejudice.

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The Magistrate Judge advised the parties that they had fourteen days to file

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objections to the R&R. (R&R at 9 (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b),

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Federal Rules of Civil Procedure. Petitioner filed objections on April 28, 2016 (Doc. 24).

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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.23) is accepted.
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 plain procedural bar or lack of any violation of constitutional right
and jurists would not find the rulings debatable.
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.
Dated this 2nd day of May, 2016.

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Neil V. Wake
United States District Judge

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