Martin #263504 v. Ryan et al

Filing 17

ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS: ORDER Accepting 16 Magistrate Judge's Report and Recommendation. FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing Petitioner&# 039;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. Having considered the issuance of a Certificate of Appealability from the order denying Petiti oner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Douglas L Rayes on 5/18/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Braulio Trejo Martin,
Petitioner,

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v.

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Charles Ryan, et al.,

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No. CV-17-02160-PHX-DLR
ORDER and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

Respondents.

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

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Magistrate Judge David K. Duncan (Doc. 16) regarding Petitioner Braulio Trejo Martin’s

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

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R&R recommends that the Petition be denied and dismissed with prejudice.

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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. (Doc. 16 at 17 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6 and 72).) The

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deadline to file an objection has long since passed, yet Petitioner has not filed an

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objection.

The

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Nevertheless, the Court has reviewed the R&R de novo. See Fed. R. Civ. P. 72(b);

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28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those

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portions of the Report and Recommendation to which specific objections are made). The

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Court agrees with the Magistrate Judge’s determination that Petitioner filed the pending

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Petition after expiration of the AEDPA statute of limitations, statutory and equitable

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tolling do not render the petition timely, and thus are procedurally barred.

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The Court accepts the recommended decision within the meaning of Rule 72(b),

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Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating

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that the district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate”).

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IT IS ORDERED that the Magistrate Judge’s R&R (Doc. 16) is ACCEPTED.

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IT IS FURTHER ORDERED that

the Clerk of the Court enter judgment

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denying and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to

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28 U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.

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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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and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of

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the Petition is justified by a plain procedural bar and reasonable jurists would not find the

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ruling debatable, and because Petitioner has not made a substantial showing of the denial

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of a constitutional right.

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Dated this 18th day of May, 2018.

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Douglas L. Rayes
United States District Judge

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