Lane v. Ryan et al

Filing 21

ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS and accepting the REPORT AND RECOMMENDATION 16 . ORDER that the Clerk of the Court enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus pursuant to 28:2254 1 with prejudice. The Clerk shall terminate this action. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. Signed by Judge Neil V Wake on 5/15/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Kenneth Lane,
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

No. CV-12-08014-PCT-NVW (DKD)
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

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Magistrate Judge David K. Duncan (Doc. 16) regarding petitioner’s Petition for Writ of

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Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that

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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R. (R&R at P. 6, ln. 20

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(citing 28 U.S.C. § 636(b)). Petitioner filed objections on May 14, 2013 (Doc. 20).

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The court has considered the objections and reviewed the Report and

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Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that

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the court must make a de novo determination of those portions of the Report and

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Recommendation to which specific objections are made). The court agrees with the

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Magistrate Judge’s determinations, accepts the recommended decision within the

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meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28

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

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or in part, the findings or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 16) is accepted.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

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and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§ 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 dismissal of the

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

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ruling debatable.
Dated this 15th day of May, 2013.

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