Lopez-Valencia v. USA

Filing 11

ORDER: The Court adopts the Report and Recommendation of the Magistrate Judge filed on March 1, 2016. (Doc. 10 .) IT IS FURTHER ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence, filed September 28, 2015 (Doc. 1 ) be DISM ISSED WITHOUT PREJUDICE for failure to prosecute. The Clerk of Court shall enter judgment accordingly; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal was justified by a plain procedu ral bar and jurists of reason would not find the procedural ruling debatable; Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 39 in CR-14-1153-01-PHX-SMM) be denied with prejudice. Signed by Senior Judge Stephen M McNamee on 3/29/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Erasmo Lopez-Valencia,

No. CV-15-01954-PHX-SMM

Petitioner,

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v.

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No. CR-14-1153-01-PHX-SMM

USA,

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ORDER
Respondent.

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Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct

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Sentence pursuant to 28 U.S.C. § 2255, filed on September 24, 2015. (Doc. 1.) The

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matter was referred to Magistrate Judge James F. Metcalf

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Recommendation. On December 23, 2015, Respondent filed a Motion to Declare

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Attorney Client Privilege Waived. (Doc. 6.) Contrary to the Magistrate Judge’s Order

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(Doc. 7), Movant did not respond. Movant was then ordered to show cause why this case

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should not be dismissed for failure to prosecute and failure to comply with Court orders.

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(Doc. 9.) Movant again failed to respond. The Magistrate Judge filed his Report and

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Recommendation, to which no objections have been filed.

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for a Report and

STANDARD OF REVIEW

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The Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the

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service of a copy of the Magistrate’s recommendation within which to file specific

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written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to

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object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo

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review of the Magistrate Judge’s factual findings and waives all objections to those

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findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure

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to object to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the

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propriety of finding waiver of an issue on appeal.” Id.

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DISCUSSION

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Having reviewed the Report and Recommendation of the Magistrate Judge, and no

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Objections having been made by any party thereto, the Court hereby incorporates and

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adopts the Magistrate Judge’s Report and Recommendation.

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The standard for this Court to issue a Certificate of Appealability (“COA”) is

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whether the applicant has “made a substantial showing of the denial of a constitutional

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right .” 28 U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Section 2254 Cases.

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“Where a district court has rejected the constitutional claims on the merits, the showing

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required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

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reasonable jurists would find the district court’s assessment of the constitutional claims

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debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner’s

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underlying constitutional claim, a COA should issue when the prisoner shows, at least,

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that jurists of reason would find it debatable whether the petition states a valid claim of

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the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Id. Because the Court’s

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decision is procedural and the Court finds that jurists of reason would not find it

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debatable whether this Court decided the matter correctly, a certificate of appealability

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will be denied.

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CONCLUSION AND ORDER

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For the reasons set forth,

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IT IS HEREBY ORDERED that the Court adopts the Report and

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Recommendation of the Magistrate Judge filed on March 1, 2016. (Doc. 10.)

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IT IS FURTHER ORDERED that Movant’s Motion to Vacate, Set Aside, or

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Correct Sentence, filed September 28, 2015 (Doc. 1) be DISMISSED WITHOUT

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PREJUDICE for failure to prosecute. The Clerk of Court shall enter judgment

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accordingly.

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

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proceed in forma pauperis on appeal are DENIED because the dismissal was justified by

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a plain procedural bar and jurists of reason would not find the procedural ruling

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debatable.

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IT IS FURTHER ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255

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to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 39 in

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CR-14-1153-01-PHX-SMM) be denied with prejudice.

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Dated this 29th day of March, 2016.

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Honorable Stephen M. McNamee
Senior United States District Judge

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