Evans v. Ryan et al

Filing 18

ORDER ADOPTING 16 Report and Recommendation of the Magistrate Judge. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability a nd leave to proceed in forma pauperis on appeal are DENIED. The Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc. 1 ), with prejudice, and shall terminate this action. Signed by Judge Douglas L Rayes on 8/12/16. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Monta Joe Evans,

No. CV-16-08067-PHX-DLR
Petitioner,

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v.

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ORDER

Charles Ryan, et al.,

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Respondents.

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Before the Court is the Report and Recommendation (R&R) of Magistrate Judge

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Bridget S. Bade, (Doc. 16), regarding Petitioner’s Petition for Writ of Habeas Corpus

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filed pursuant to 28 U.S.C. § 2254, (Doc. 1). The R&R recommends that the petition be

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denied and dismissed with prejudice. The Magistrate Judge advised the parties that they

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had fourteen days to file objections to the R&R. (Doc. 16 at 4 (citing 28 U.S.C. §

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636(b)(1); Fed. R. Civ. P. 6, 72).)

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Recommendation on June 24, 2016. (Doc. 17.)

Petitioner filed his Objection to Report and

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The Court has considered the objections and reviewed the R&R de novo. See Fed.

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R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

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determination of those portions of the R&R to which specific objections are made). The

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Court agrees with the Magistrate Judge’s determinations, accepts the recommended

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decision within the meaning of Rule 72(b), 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”). Petitioner has

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failed to show that the state court has refused, or will refuse to rule on his Rule 32,

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Petition for Post-Conviction Relief, should he file one. Petitioner has failed to show any

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factual or legal basis that failure to review his writ of habeas corpus will result in a

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fundamental miscarriage of justice. Petitioner has failed to establish that he is entitled to

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the appointment of counsel.

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IT IS ORDERED that the Report and Recommendation of the Magistrate Judge,

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(Doc.16), is ACCEPTED.

Having considered the issuance of a Certificate of

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Appealability from the order denying Petitioner’s Petition for a Writ of Habeas Corpus, a

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Certificate of Appealability and leave to proceed in forma pauperis on appeal are

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DENIED.

The Clerk of the Court shall enter judgment denying and dismissing

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Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, (Doc.

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1), with prejudice, and shall terminate this action.

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Dated this 12th day of August, 2016.

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Douglas L. Rayes
United States District Judge

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