Varela #275119 v. Ryan et al

Filing 22

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)

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NOT FOR PUBLICATION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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Raul Varela,

No. CV-15-01971-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 are the Petition for Writ of Habeas Corpus filed by Raul Varela on

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October 1, 2015 (Doc. 1), to which Charles Ryan and the Atty. Gen. of the state of

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Arizona filed a Response (Doc. 13); and the Report and Recommendation (“R&R”)

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prepared in this matter by United States Magistrate Judge James F. Metcalf (Doc. 21),

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which recommends that this Court deny the Petition.

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The time for any party to file objections to the R&R ran as of November 29, 2016.

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No party filed any objections, either as of that date or at any time thereafter. Such failure

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to file objections to the R&R is considered a waiver of a party’s right to de novo

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consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (en banc). It also constitutes a waiver of a party’s right to appellate review of the

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findings of fact in an order or judgment entered pursuant to the R&R. See Robbins v.

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Carey, 481 F.3rd 1143, 1146-47 (9th Cir. 2007). Nonetheless, this Court has undertaken

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de novo review of the issues presented in the Petition and associated briefing. Upon that

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review, the Court concludes that Magistrate Judge Metcalf’s recommendations are

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wholly sound. The Court adopts in whole Judge Metcalf’s R&R and the underlying

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reasoning. The Court expressly finds sufficient evidence was presented to the jury at trial

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in the underlying matter from which that jury could rationally conclude that all elements

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of Count 3 of the charges against Petitioner were met. And in any event, the conclusion

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of the Arizona Court of Appeals to that effect was not unreasonable. For all of those

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reasons, the Court will deny the Petition.

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IT IS ORDERED adopting the R&R (Doc. 21) in whole.

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IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus

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(Doc. 1).

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IT IS FURTHER ORDERED denying a Certificate of Appealability upon the

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Court’s conclusion that jurists of reason would not find its assessment of the

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constitutional claims to be debatable or wrong.

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Dated this 13th day of February, 2017.

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Honorable John J. Tuchi
United States District Judge

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