Ashmeade v. Sullivan et al

Filing 27

ORDER: That the Report and Recommendation of the Magistrate Judge (Doc. 22 ) is accepted. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the deni al of a constitutional right. The Clerk of the Court shall enter judgment denying and dismissing Petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 17 ) with prejudice. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 04/11/16. (GAR)

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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-15-00937-PHX-NVW (JZB)

Duane Ashmeade,

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Petitioner,

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v.

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Charles L. Ryan; et al.,

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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

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Magistrate Judge John Z. Boyle (Doc. 22) regarding petitioner’s Amended Petition for

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Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 17).

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The R&R

recommends that the Petition be denied and dismissed with prejudice. The Magistrate

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Judge advised the parties that they had fourteen days to file objections to the R&R.

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(R&R at 11 (citing 28 U.S.C. § 636(b)(1); 1); Fed. R. Civ. P. 6(a), 6(b) and 72).

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Petitioner filed objections on April 7, 2016 (Doc. 25). Respondents filed a Response to
Petitioner’s Objections on April 8, 2016 (Doc. 26).
The Court has considered the objections and response and reviewed the Report
and Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating

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that 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
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. 22) 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 Petitioner has not
made a substantial showing of the denial of a constitutional right.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
and dismissing Petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant
to 28 U.S.C. § 2254 (Doc. 17) with prejudice. The Clerk shall terminate this action.
Dated this 11th day of April, 2016.

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Neil V. Wake
United States District Judge

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