Valenzuela #172770 v. Ryan et al

Filing 68

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED that Magistrate Judge Burns' R&R (Doc. 65 ) is ACCEPTED. Petitioner's Petition for Writ of Habeas Corpus (Doc. 8 ) is DISMISSED. The Clerk of the Court shall terminate this case. 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 is denied because Petitioner has not made a substantial showing of the de nial of a constitutional right and because the dismissal of the petition is justified by a plain procedural bar, and jurists of reason would not find the procedural ruling debatable. (See document for complete details). Signed by Judge Douglas L Rayes on 10/16/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melinda Gabriella Valenzuela,
Petitioner,

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ORDER

v.

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No. CV-17-01892-PHX-DLR

Charles L Ryan, et al.,

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Respondents.

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Before the Court is Petitioner Melinda Gabriella Valenzuela’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 and United States Magistrate Judge

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Michelle H. Burns’ Report and Recommendation (“R&R”). (Docs. 8, 65.) The R&R

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recommends that the Petition be denied and dismissed with prejudice, finding that ground

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two fails on the merits, and grounds one and three are procedurally defaulted. The

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

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R&R and that failure to file timely objections could be considered a waiver of the right to

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obtain review of the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003). Petitioner did not file objections, which relieves the Court of its obligation to

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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149

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(1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is

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not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-

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taken. The Court will accept the R&R and deny the Petition and dismiss. See 28 U.S.C.

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§ 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3)

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(“The district judge may accept, reject, or modify the recommended disposition; receive

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further evidence; or return the matter to the magistrate judge with instructions.”).

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IT IS ORDERED that Magistrate Judge Burns’ R&R (Doc. 65) is ACCEPTED.

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Petitioner’s Petition for Writ of Habeas Corpus (Doc. 8.) is DISMISSED. The Clerk of

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the Court shall terminate this case.

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Petition for a Writ of Habeas Corpus, a Certificate of Appealability

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is denied because Petitioner has not made a substantial showing of the denial of a

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constitutional right and because the dismissal of the petition is justified by a plain

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procedural bar, and jurists of reason would not find the procedural ruling debatable.

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Dated this 16th day of October, 2018.

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Douglas L. Rayes
United States District Judge

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