Ales v. Ryan et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION: the Report and Recommendation of the Magistrate Judge 15 is accepted; the Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus 1 with prejudice; the Clerk shall terminate this action; the request for a Certificate of Appealability is denied because appellant 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. Signed by Senior Judge Neil V Wake on 2/22/17. (REW)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV-16-1840-PHX-NVW (JZB) Levi Shane Ales, 10 Petitioner, 11 v. 12 Charles Ryan, et al., 13 14 Respondent. ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS Pending before the Court is the Report and Recommendation (“R&R”) of 15 Magistrate Judge John Z. Boyle (Doc. 15) regarding petitioner’s Petition for Writ of 16 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that 17 the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the 18 parties that they had fourteen days to file objections to the R&R. (R&R at 16 (citing 28 19 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Petitioner filed objections on 20 January 26, 2017 (Doc. 16). 21 The Court has considered the objections and reviewed the Report and 22 Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that 23 the court must make a de novo determination of those portions of the Report and 24 Recommendation to which specific objections are made). The Court agrees with the 25 Magistrate Judge’s determinations, accepts the recommended decision within the 26 27 28 meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 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 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. The request for a certificate of appealability is denied because appellant 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). Dated this 22nd day of February, 2017. 15 16 17 18 Neil V. Wake Senior United States District Judge 19 20 21 22 23 24 25 26 27 28 -2 

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