Myers v. Ryan et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION re: 28 Report and Recommendation and denying the Petition (Doc. 1 ). The Clerk shall enter judgment accordingly and close this matter. A certificate of appealability and leave to proceed in forma pauperis is denied. Petitioner has failed to make a showing of denial of any constitutional right as to Grounds One and Five through Nine. Grounds Two through Four are justified by a plain procedural bar. Signed by Judge John J Tuchi on 2/16/21. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tony Lee Myers,
Petitioner,

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ORDER

v.

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No. CV-19-02082-PHX-JJT (CDB)

Charles L. Ryan, et al.,

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Respondents.

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At issue is the Report and Recommendation (Doc. 28)(“R&R”) submitted by United

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States Magistrate Judge Camille D. Bibles recommending that the Court deny the Petition

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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). In the R&R, Judge Bibles

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explicitly warned Petitioner he had 14 days from entry of the R&R to file any specific

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written objections to it, and failure to do so would result in Petitioner’s waiving his right

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to de novo appellate review of the findings of fact, conclusions of law, and the issues.

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(Doc. 24 at 24.) It has been over a month since Judge Bibles entered her R&R and

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Petitioner has filed no objections timely or otherwise. Pursuant to United States v. Reyna-

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Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003), he has waived his right to review of the issues.

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Judge Bibles’ findings of fact and conclusions of law. The Court thus will adopt the R&R

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in whole and deny the Petition. Grounds One, Five, Six and Eight are denied on the merits

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as the state court did not unreasonably apply clearly established federal law. Grounds Two

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through Four are procedurally defaulted without excuse. Grounds Seven and Nine allege

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only errors in the application of state law and do not present federal claims; they are thus

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not cognizable under Section 2254.

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IT IS ORDERED adopting the R&R (Doc. 28) in whole.

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IT IS FURTHER ORDERED denying the Petition (Doc. 1). The Clerk of Court

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shall enter judgment accordingly and close this matter.

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IT IS FURTHER ORDERED denying a certificate of appealability and leave to

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proceed in forma pauperis. Petitioner has failed to make a showing of denial of any

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constitutional right as to Grounds One and Five through Nine. Grounds Two through Four

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are justified by a plain procedural bar.

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Dated this 16th day of February, 2021.

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Honorable John J. Tuchi
United States District Judge

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