Lunsford v. Hacker-Agnew et al

Filing 21

ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS: IT IS ORDERED that Report and Recommendation of the Magistrate Judge 15 is ACCEPTED. Having considered the issuance of a Certificate of Appealability from the order den ying Petitioner's Petition for 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. The Clerk of Court enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 1 with prejudice. The Clerk shall terminate this action. Signed by Judge Douglas L Rayes on 1/25/2018. (REK)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Gregory Joe Lunsford,

10

Petitioner,

11

v.

12

Carla Hacker-Agnew, et al.,

13
14

No. CV-16-03216-PHX-DLR (JZB)
ORDER and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

Respondents.
Pending before the Court is the Report and Recommendation (“R&R”) of

15

Magistrate Judge John Z. Boyle (Doc. 15), regarding Petitioner Joe Lunsford’s Petition

16

for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R

17

recommends that the Petition be denied and dismissed with prejudice. The Magistrate

18

Judge advised the parties that they had fourteen days to file objections to the R&R. (Doc.

19

15 at 30 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72).) Petitioner filed

20
21
22
23

an objection to the R&R on June 16, 2017. (Doc. 16.) On June 22, 2017, Respondents
filed their response (Doc. 17), and on July 14, 2017, Petitioner filed his reply (Doc. 18).
The Court has considered the objections, the response and reply and reviewed the
R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court

24

must make a de novo determination of those portions of the Report and Recommendation

25

to which specific objections are made). The Court agrees with the Magistrate Judge’s

26
27
28

determinations, accepts the recommended decision within the meaning of Rule 72(b), and
overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating that the district court

1
2
3
4
5
6
7
8
9
10
11

“may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate”).
IT IS ORDERED that Report and Recommendation of the Magistrate Judge
(Doc.15) is ACCEPTED.

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. 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 25th day of January, 2018.

12
13
14
15
16

Douglas L. Rayes
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28

-2