Ales v. Ryan et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CV-16-1840-PHX-NVW (JZB)
Levi Shane Ales,
Charles Ryan, et al.,
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
Pending before the Court is the Report and Recommendation (“R&R”) of
Magistrate Judge John Z. Boyle (Doc. 15) regarding petitioner’s Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
parties that they had fourteen days to file objections to the R&R. (R&R at 16 (citing 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Petitioner filed objections on
January 26, 2017 (Doc. 16).
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”).
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.
Neil V. Wake
Senior United States District Judge
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