Todd v. Ryan et al

Filing 23

ORDER - Accepting and Adopting the Magistrate Judge's 20 Report and Recommendation. The petitioner's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 5 ) is denied and dismiss ed with prejudice. IT IS FURTHER ORDERED that a certificate of appealability shall not issue and leave to appeal in forma pauperis is denied because the dismissal of the petitioner's Amended Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because the petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 06/28/15. (ATD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Charles Henry Todd, Petitioner, 11 12 13 vs. Charles L. Ryan, et al. Respondents. 14 15 ) ) ) ) ) ) ) ) ) ) ) No. CV-13-08189-PCT-PGR (JZB) ORDER 16 Having reviewed de novo the Report and Recommendation of Magistrate 17 Judge Boyle notwithstanding that no party has filed any objections to the Report and 18 Recommendation1, the Court concludes that the Magistrate Judge correctly 19 20 21 22 23 24 25 26 1 The Court notes that the Clerk of the Court mailed a copy of the Report and Recommendation to the petitioner, who is out of custody, to the address noted by the petitioner in his last change of address form (Doc. 16). Although there is no indication in the record that this copy of the Report and Recommendation was not received by the petitioner, the Court, in an abundance of caution, entered an order (Doc. 21) that required the Clerk to mail another copy of the Report and Recommendation to the petitioner at a different address that the petitioner had placed on two motions for status (Docs. 18 and 19) that he had filed subsequent to his last notice of change of address. That second copy of the Report and Recommendation was returned as undeliverable and the Court has no other mailing addresses for the petitioner. 1 determined that the petitioner’s amended petition for a writ of habeas corpus, filed 2 pursuant to 28 U.S.C. § 2254, should be denied (1) because the petitioner 3 procedurally defaulted on Grounds One, Two, Three, Four, Five, Six, Seven (a), 4 Eight and Nine and has not established any cause, including his claims of ineffective 5 assistance of counsel, sufficient to excuse his procedural defaults and he has not 6 argued a fundamental miscarriage of justice, and (2) because the Arizona Court of 7 Appeals’ rejection of the petitioner’s “right to present a defense” claim underlying 8 Ground Seven (b), which was based on the preclusion of hearsay evidence, was not 9 contrary to or an unreasonable application of clearly established Supreme Court 10 precedent. Therefore, 11 12 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 20) is accepted and adopted by the Court. 13 IT IS FURTHER ORDERED that the petitioner’s Amended Petition Under 28 14 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 5) 15 is denied and is dismissed with prejudice. 16 IT IS FURTHER ORDERED that a certificate of appealability shall not issue 17 and leave to appeal in forma pauperis is denied because the dismissal of the 18 petitioner’s Amended Petition is justified by a plain procedural bar and jurists of 19 reason would not find the procedural ruling debatable, and because the petitioner 20 has not made a substantial showing of the denial of a constitutional right. 21 22 23 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. DATED this 28th day of June, 2015. 24 25 26 -2-

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