Montoya v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION accepting 10 Report and Recommendation. The Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with pre judice and terminate this action. 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. Signed by Judge Douglas L Rayes on 6/29/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-16-4185-PHX-DLR

Arthur Montoya, Jr.,

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Petitioner,

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v.

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Charles L. Ryan, et. al.,

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Respondents.

ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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Pending before the Court is the Report and Recommendation (R&R) of Magistrate

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Judge James F. Metcalf (Doc. 10) regarding Petitioner Arthur Montoya, Jr.’s Petition for

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

The R&R

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

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

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10 at 16-17 (citing Fed. R. Civ. P. 72(b)). Petitioner filed objections on June 19, 2017,
(Doc. 11), to which Respondents replied (Doc. 12).
Although Petitioner’s Objection to Report and Recommendation is a reiteration of
his version of the facts of the case, re-urging the same points made in the habeas petition,

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the Court nonetheless has considered the objections and reviewed the R&R de novo. See

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

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determination of those portions of the R&R to which specific objections are made). The
Court agrees with the Magistrate Judge’s determinations, accepts the recommended

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decision within the meaning of Rule 72(b), and overrules Petitioner’s objections. See §
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 ORDERED that R&R of Magistrate Judge Metcalf (Doc. 10) is
ACCEPTED.

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.

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The Clerk of the Court enter judgment denying and dismissing

IT IS FURTHER ORDERED that, 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.
Dated this 29th day of June, 2017.

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Douglas L. Rayes
United States District Judge

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