Fisher v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION 15 . FURTHER ORDERED that the Petition Under 28 U.S.C. § 2254 is denied and the action is dismissed with prejudice. FURTHER ORDERED that a certificate of appealability shall not issue and leave to appeal in forma pauperis is denied. FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 6/28/15. (SJF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Lee Fisher,
Petitioner,

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vs.
Charles L. Ryan, et al.,
Respondents.

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No. CV-13-08267-PCT-PGR (ESW)
ORDER

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Having reviewed de novo the Report and Recommendation of Magistrate

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Judge Willett notwithstanding that no party has filed any objections to the Report and

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Recommendation, the Court finds that the Magistrate Judge correctly determined

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that the petitioner’s petition for a writ of habeas corpus, timely filed pursuant to 28

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U.S.C. § 2254, should be denied.

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The Court agrees with the Magistrate Judge that the petitioner procedurally

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defaulted on Grounds One, Two and Three due to his failure to fairly present them

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to the state courts, that he has not shown any sufficient cause to excuse the

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defaults, including any cause arising out the narrow exception of Martinez v. Ryan,

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132 S.Ct. 1309 (2012), and that he has not argued a fundamental miscarriage of

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justice.

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The Court further agrees with the Magistrate Judge that Ground Four, which

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alleges that the petitioner was tried while incompetent, is meritless inasmuch as the

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Arizona Court of Appeals reasonably determined the facts and reasonably applied

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Supreme Court precedent in affirming that the petitioner was competent to stand

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trial. Therefore,

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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc. 15) is accepted and adopted by the Court.

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IT IS FURTHER ORDERED that the petitioner’s Petition Under 28 U.S.C. §

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2254 for a writ of Habeas Corpus by a Person in State Custody is denied and that

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this action is dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability shall not issue

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and leave to appeal in forma pauperis is denied because the dismissal of Grounds

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One through Three of the petition is justified by a plain procedural bar and jurists of

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reason would not find the procedural ruling debatable, and because the petitioner

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has not made a substantial showing of the denial of a constitutional right as to

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Ground Four.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
DATED this 28th day of June, 2015.

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