Byrd v. Ryan et al

Filing 18

ORDER that Report and Recommendation of the Magistrate Judge (Doc. 15 ) is accepted. FURTHER ORDERED that Petitioner's Motion to Stay or Motion to Dismiss Petition Without Prejudice so Petitioner Can Exhaust Claim in State Court (Doc. 17 ) is d enied. 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 dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with prejudice. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 4/18/2016. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Charles Edward Byrd,

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Petitioner,

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v.

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Charles L. Ryan; et al.,

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Respondents.

No. CV-15-02263-PHX-NVW (DKD)
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 David K. Duncan (Doc. 15) regarding petitioner’s Petition for Writ of

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Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that

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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R. (R&R at 4 (citing 28

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U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Petitioner

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filed objections on April 15, 2016 (Doc. 16).

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Petitioner has also filed a Motion to Stay or Motion to Dismiss Petition Without

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Prejudice so Petitioner Can Exhaust Claim in State Court. (Doc. 17.) For the reasons

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stated in the R&R, any state court petition would by barred at this time. Therefore, this
Motion will be denied as futile.
The Court has considered the objections and reviewed the Report and
Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating 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
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
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.15) is accepted.
IT IS FURTHER ORDERED that Petitioner’s Motion to Stay or Motion to
Dismiss Petition Without Prejudice so Petitioner Can Exhaust Claim in State Court (Doc.
17) is denied.
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 dismissal of the
Petition is justified by a plain procedural bar and jurists of reason would not find the
ruling debatable.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.
Dated this 18th day of April, 2016.

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Neil V. Wake
United States District Judge

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