Portillo-Diaz v. Ryan et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED adopting Magistrate Judge Metcalf's R&R (Doc. 16 ) in its entirety and incorporating same into this Order. IT IS FURTHER ORDERED denying the substantive actual innocence claims in Groun ds Three and Four of the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ); dismissing the remainder of the Petition with prejudice; and denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge John J Tuchi on 9/2/16. (KGM)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Javier Portillo-Diaz,

No. CV-15-01172-PHX-JJT
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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At issue is Petitioner Javier Portillo-Diaz’s Petition under 28 U.S.C. §2254 for

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Writ of Habeas Corpus (Doc. 1). United States Magistrate Judge James F. Metcalf issued

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a Report and Recommendation (“R&R”) in the matter recommending denial and

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dismissal of the Petition (Doc. 16). The time to object passed over two months ago and

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no party has objected, timely or otherwise. The Court thus may accept the R&R without

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further review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The

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Court nonetheless has conducted its own review of the Petition, and for the reasons set

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forth in the R&R, which the Court will adopt in whole, it will deny and dismiss the

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Petition.

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In the 44-page R&R, Judge Metcalf thoroughly and painstakingly analyzed the

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many issues and sub-issues raised in the instant Petition, and because this Court will

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adopt the recommendations set forth in the R&R, it will not restate those issues or their

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resolution here. The Court finds Judge Metcalf’s analysis on each point to be correct.

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IT IS ORDERED adopting Magistrate Judge Metcalf’s R&R (Doc. 16) in its
entirety and incorporating same into this Order.

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IT IS FURTHER ORDERED denying the substantive actual innocence claims in

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Grounds Three and Four of the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254 (Doc. 1).

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IT IS FURTHER ORDERED dismissing the remainder of the Petition with
prejudice.

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal in this matter because the dismissal of the instant

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Petition is justified by a plain procedural bar and jurists of reason would not find the

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procedural ruling debatable.

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Dated this 2nd day of September, 2016.

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Honorable John J. Tuchi
United States District Judge

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