Varela #275119 v. Ryan et al
ORDER ADOPTING 21 Report and Recommendation in whole. ORDERED denying the Petition for Writ of Habeas Corpus (Doc. 1 ). FURTHER ORDERED denying a Certificate of Appealability upon the Court's conclusion that jurists of reason would not find its assessment of the constitutional claims to be debatable or wrong. Signed by Judge John J Tuchi on 2/13/17. (EJA)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles L. Ryan, et al.,
At issue are the Petition for Writ of Habeas Corpus filed by Raul Varela on
October 1, 2015 (Doc. 1), to which Charles Ryan and the Atty. Gen. of the state of
Arizona filed a Response (Doc. 13); and the Report and Recommendation (“R&R”)
prepared in this matter by United States Magistrate Judge James F. Metcalf (Doc. 21),
which recommends that this Court deny the Petition.
The time for any party to file objections to the R&R ran as of November 29, 2016.
No party filed any objections, either as of that date or at any time thereafter. Such failure
to file objections to the R&R is considered a waiver of a party’s right to de novo
consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc). It also constitutes a waiver of a party’s right to appellate review of the
findings of fact in an order or judgment entered pursuant to the R&R. See Robbins v.
Carey, 481 F.3rd 1143, 1146-47 (9th Cir. 2007). Nonetheless, this Court has undertaken
de novo review of the issues presented in the Petition and associated briefing. Upon that
review, the Court concludes that Magistrate Judge Metcalf’s recommendations are
wholly sound. The Court adopts in whole Judge Metcalf’s R&R and the underlying
reasoning. The Court expressly finds sufficient evidence was presented to the jury at trial
in the underlying matter from which that jury could rationally conclude that all elements
of Count 3 of the charges against Petitioner were met. And in any event, the conclusion
of the Arizona Court of Appeals to that effect was not unreasonable. For all of those
reasons, the Court will deny the Petition.
IT IS ORDERED adopting the R&R (Doc. 21) in whole.
IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
IT IS FURTHER ORDERED denying a Certificate of Appealability upon the
Court’s conclusion that jurists of reason would not find its assessment of the
constitutional claims to be debatable or wrong.
Dated this 13th day of February, 2017.
Honorable John J. Tuchi
United States District Judge
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