Jones v. Stearns et al

Filing 26

ORDER: The Court hereby ACCEPTS 21 the Report and Recommendation of Magistrate Judge Michelle H. Burns. ORDERED that the 5 Petition for Habeas Corpus is DENIED and this action is DISMISSED WITH PREJUDICE. FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. The Clerk of Court shall enter a final judgment accordingly. Signed by Judge Sharon L Gleason on 11/3/2014. (ALS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

JOE KENARD JONES, JR.,
Petitioner,
vs.
CHARLES L. RYAN, et al.,
Respondents.

Case No. 3:13-cv-08104-PCT-SLG

ORDER DENYING PETITION FOR HABEAS CORPUS
Before the Court at Docket 5 is the Amended Petition for Writ of Habeas Corpus
filed by Petitioner Joe Kenard Jones Jr. on June 7, 2013, pursuant to 28 U.S.C. § 2254.
On October 11, 2013, Respondents Charles L. Ryan, et al., filed an Answer to Petition
for Writ of Habeas Corpus at Docket 16. Mr. Jones filed a Reply at Docket 17. On April
9, 2014, at Docket 21, Magistrate Judge Michelle H. Burns issued a Report and
Recommendation.

After a thoughtful and thorough analysis, the Magistrate Judge

recommended that the Petition be denied and that this action be dismissed with

prejudice. 1 The Magistrate Judge further recommended that a Certificate of Appealability
and leave to proceed in forma pauperis on appeal be denied.
On April 16, 2014, Mr. Jones filed a motion to extend his time within which to file
objections, which the Court granted, extending the deadline for objections to June 16,
2014. 2 On May 27, 2014, Mr. Jones filed a Motion to Assign and Appoint New Counsel. 3
On October 3, 2014, the Court issued an Order concluding that, based on the Magistrate
Judge’s Report and Recommendation, assistance of counsel was not necessary at this
stage of the proceedings. 4 But the Court granted Mr. Jones an additional 14 days to file
any objections to the R&R. That deadline has passed and no objections to the Report
and Recommendation have been filed.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute
provides that a district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 5 The court is to “make a de novo
determination of those portions of the [magistrate judge’s] report or specified proposed
findings or recommendations to which objection is made.”6 But when no objections are
filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a district judge to

1

Docket 21 (R&R). The Magistrate Judge concluded that Ground One of the Petition was
procedurally defaulted, and Grounds Two through Five fail on the merits.

2

Dockets 22 (Mot.) & 23 (Order).

3

Docket 24 (Mot.).

4

Docket 25 (Order).

5

28 U.S.C. § 636(b)(1).

6

Id.

3:13-cv-08104-PCT-SLG, Jones v. Ryan, et al.
Order Denying Petition for Habeas Corpus
Page 2 of 3

review, de novo, findings and recommendations that the parties themselves accept as
correct.” 7
There being no objections filed by either party, and following this Court’s review of
the R&R, the Court hereby ACCEPTS the Report and Recommendation of Magistrate
Judge Michelle H. Burns.
Accordingly, IT IS ORDERED that the Petition for Habeas Corpus is DENIED and
this action is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed
in forma pauperis on appeal are DENIED because Mr. Jones has not “made a substantial
showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2) 8 and
any appeal would not be taken in good faith. 9
The Clerk of Court shall enter a final judgment accordingly.
Dated this 3rd day of November, 2014.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

7

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court
review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”).
8

See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of appealability may be granted
only if the applicant has made “a substantial showing of the denial of a constitutional right,” i.e., a
showing that “reasonable jurists could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” (internal quotation marks and citations omitted)).
9

See Fed. R. App. P. 24(a).

3:13-cv-08104-PCT-SLG, Jones v. Ryan, et al.
Order Denying Petition for Habeas Corpus
Page 3 of 3