Jackson v. Mendoza et al

Filing 21

ORDER AND OPINION Re: Report and Recommendation. Accordingly, the court ACCEPTS the report and recommendation at docket 20 . Petitioner's amended petition is dismissed with prejudice. Because jurists of reason would not find the court's procedural ruling debatable, the court declines to issue a certificate of appealability (see attached pdf for complete information). Signed by Judge John W Sedwick on 3/30/11. (TLJ)

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

RICHARD CLARE JACKSON, Petitioner, vs. MENDOZA, et al., Respondents.

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3:10-cv-08005 JWS (ECV) ORDER AND OPINION [Re: Report and Recommendation]

I. MATTER PRESENTED At docket 6, petitioner Richard C. Jackson filed his Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. At docket 15, respondents Mendoza, et al., filed their response opposing the petition. Petitioner Jackson replied at docket 19. Magistrate Judge Edward C. Voss filed his report and recommendation at docket 20. No objections to the report and recommendation were filed. II. STANDARD OF REVIEW The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."1 When reviewing a magistrate

1

28 U.S.C. § 636(b)(1).

judge's report and recommendation in a habeas case, the district court reviews de novo conclusions of law2 and findings of fact to which parties object.3 The court reviews for clear error uncontested findings of fact.4 III. BACKGROUND The court has reviewed the report and recommendation and found that it accurately summarizes the background facts of this case. Moreover, petitioner does not object to any of the magistrate judge's findings of fact.5 Accordingly, the court adopts the background summary as its own. IV. DISCUSSION Having carefully reviewed the magistrate judge's report and recommendation under the standard of review articulated above, the court agrees with the magistrate judge's conclusions of law that the four grounds for relief set forth in petitioner's amended petition for writ of habeas corpus are procedurally defaulted. Accordingly, the court ACCEPTS the report and recommendation at docket 20. Because petitioner Jackson's claims are procedurally defaulted and petitioner has failed to demonstrate cause and prejudice for the default or that "failure to review his claims will result in a fundamental miscarriage of justice," petitioner's amended petition is DISMISSED with prejudice.6 Because jurists of reason would not find the court's procedural ruling
Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
3 2

28 U.S.C. § 636(b)(1). Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 906 (3d Cir. 1992).

4

Jones v. Wood, 207 F.3d 557, 562 n.2 (9th Cir. 2000) ("Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact.")
6

5

Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

debatable, this court declines to issue a certificate of appealability.7 If petitioner Jackson wishes to appeal, he may request the necessary certificate from the Court of Appeals. See Fed. R. App. P. 22(b). DATED this 30th day of March, 2011.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

7

Slack v. McDaniel, 529 U.S. 473, 484-485 (2000).