Jones v. Ryan et al

Filing 19

ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY - The 15 Report and Recommendation of the Magistrate Judge is accepted. The Clerk of the Court shall enter judgment denying and dismissing Petitioner's 1 Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 with prejudice. The Clerk shall terminate this action. A Certificate of Appealability is denied. Signed by Judge Neil V Wake on 5/04/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Keith Jones,

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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-15-00883-PHX-NVW (JFM)
ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY

Respondents.

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

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Magistrate Judge James F. Metcalf (Doc. 15) 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 73 (citing Rule

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72(b), Federal Rules of Civil Procedure; See also Rule 8(b), Rules Governing Section

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2254 Proceedings.) Petitioner filed objections on April 5, 2016 (Doc. 17).

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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”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 15) is accepted.

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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.

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Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Petition for a Writ of Habeas Corpus, IT IS ORDERED that a
Certificate of Appealability is denied because:

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(A)

re Brady claim); (2) the portion of Ground 3(b) (ineffectiveness re prejudicial evidence
on dismissed count) which relates to trial counsel; (3) Ground 4(a) (ineffectiveness re
plea agreement); (4) Ground 4(d) (ineffectiveness re testimonial objections); and (5)
Ground 4(g) (ineffectiveness re appeal on motion in limine). Petitioner was procedurally
barred on independent and adequate state grounds from asserting: (1) Ground 1(a)
(privacy); and (2) Ground 2(a) (Brady claim). Petitioner has failed to show cause and
prejudice or actual innocence to avoid the effects of his procedural defaults and
procedural bars;

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Petitioner has procedurally defaulted on: (1) Ground 2(b) (ineffectiveness

(B)

Petitioner has failed to show a substantial constitutional question on: (1)

Grounds 1(b) (Franks claim); (2) Ground 3(a) (prejudicial evidence re dismissed count);
(3) the portion of Ground 3(b) (ineffectiveness re prejudicial evidence on dismissed
count) which relates to appellate counsel; (4) Ground 4(b) (ineffectiveness re failure to
/ / /
/ / /

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present a defense); (5) Ground 4(c) (ineffectiveness re discovery); (6) Ground 4(e)
(ineffectiveness re SDO allegation); and (7) Ground 4(f) (ineffectiveness re privacy); and
(C)

Jurists would not reasonably disagree on these questions.

Dated: May 4, 2016.

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Neil V. Wake
United States District Judge

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