Carpenter #259939 v. Ryan et al

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION: the Report and Recommendation of the Magistrate Judge 21 is accepted; a request for a Certificate of Appealability is denied because Petitioner has not shown that jurists of reason would find it debatable w hether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling; the following portions of Petitioner's Amended P etition for Writ of Habeas Corpus 10 are denied: (1) the portion of Ground 1(a)(1) based upon counsel's failure to call witnesses; (2) the portion of Ground 1(a)(2) based upon counsel's failure to call a banking expert; and (3) Ground 1(a )(3) (ineffectiveness re documents); the remainder of Petitioner's Amended Petition for Writ of Habeas Corpus 10 is dismissed with prejudice; the Clerk shall enter judgment denying and dismissing Petitioner's Amended Petition 10 with prejudice; the Clerk shall terminate this action. Signed by Senior Judge Neil V Wake on 11/29/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward Lamar Carpenter,

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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-16-00471-PHX-NVW (JFM)
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 James F. Metcalf (Doc. 21) regarding petitioner’s Amended Petition for

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Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10).

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The R&R

recommends that that the following portions of Petitioner’s Amended Petition for Writ of

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Habeas Corpus, filed April 11, 2016 (Doc. 10) be denied: (1) the portion of Ground

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1(a)(1) based upon counsel’s failure to call witnesses; (2) the portion of Ground 1(a)(2)

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based upon counsel’s failure to call a banking expert; and (3) Ground 1(a)(3)

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(ineffectiveness re documents) and that the remainder of Petitioner’s Amended Petition

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for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be dismissed with prejudice.

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The Magistrate Judge advised the parties that they had fourteen days to file

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objections to the R&R. (R&R at 32 (citing see United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003)(en banc)). Petitioner filed objections on November 7, 2016

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(Doc. 22).

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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
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”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc.21) is accepted.

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A request for a certificate of appealability is denied because Petitioner has not
shown that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v.
Thaler, 132 S. Ct. 641, 648 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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IT IS FURTHER ORDERED that that the following portions of Petitioner’s
Amended Petition for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be
DENIED: (1) the portion of Ground 1(a)(1) based upon counsel’s failure to call
witnesses; (2) the portion of Ground 1(a)(2) based upon counsel’s failure to call a
banking expert; and (3) Ground 1(a)(3) (ineffectiveness re documents).

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IT IS FURTHER ORDERED that the remainder of Petitioner’s Amended Petition
for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be dismissed with prejudice
and the Clerk of the Court enter judgment denying and dismissing Petitioner’s
/ / /
/ //
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Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc.
10) with prejudice. The Clerk shall terminate this action.
Dated this 29th day of November, 2016.

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Neil V. Wake
Senior United States District Judge

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