Holland v. Arizona, State of et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION: the Magistrate Judge's Report and Recommendation 11 is accepted and adopted by the Court; Petitioner's First Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus 5 is denied and that this action is dismissed with prejudice; no Certificate of Appealability shall be issued and that the Petitioner is not entitled to appeal in forma pauperis because dismissal of the Amended Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, and because the Petitioner has not made a substantial showing of the denial of a constitutional right; the Clerk shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 5/16/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Elvis Holland,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondent.

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No. CV-15-00361-PHX-PGR (DKD)
ORDER

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Pending before the Court is Magistrate Judge Duncan’s Report and

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Recommendation, filed on December 16, 2015. After the petitioner’s copy of the

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Report and Recommendation was returned to the Court as undeliverable, the Court

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required the respondents to inform the Court of the petitioner’s current location,

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notwithstanding the petitioner’s failure to do so as required, because it appeared that

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the petitioner had been recently moved to a different Department of Corrections

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facility. Having received that new address from the respondents, the Court had the

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Clerk of the Court mail another copy of the Report and Recommendation to the

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petitioner, which the Clerk did on March 1, 2016. That order, which was not returned

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to the Court as undeliverable, gave the petitioner a new deadline of April 4, 2016 in

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which to file his objections to the Report and Recommendation. To date, the

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petitioner has not responded to the Report and Recommendation in any manner.

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Having reviewed the Report and Recommendation de novo notwithstanding

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that no objection to it has been filed any party, the Court finds that the Magistrate

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Judge correctly determined that the petitioner’s Amended Petition for a Writ of

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Habeas Corpus should be dismissed with prejudice.

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First, the Court agrees with the Magistrate Judge that the petitioner’s claims

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referring to the Alaska testimony, the coached testimony, and the untimely witness

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testimony are all procedurally defaulted and that the petitioner has failed to show any

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cause or actual prejudice to excuse the defaults, nor has he presented any evidence

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showing that a miscarriage of justice would result from the Court’s decision not to

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review the merits of those claims.
Second, the Court agrees with the Magistrate Judge that the petitioner’s two

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claims of ineffective assistance of counsel are meritless. Therefore,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation

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(Doc. 11) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the petitioner’s First Amended Petition Under

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28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc.5)

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is denied and that this action is dismissed with prejudice.

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IT IS FURTHER ORDERED that no certificate of appealability shall be issued

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and that the petitioner is not entitled to appeal in forma pauperis because dismissal

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of the amended petition is justified by a plain procedural bar and reasonable jurists

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would not find the procedural ruling debatable, and because the petitioner has not

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made a substantial showing of the denial of a constitutional right.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 16th day of May, 2016.

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