Evans v. Ryan et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Monta Joe Evans,
Charles Ryan, et al.,
Before the Court is the Report and Recommendation (R&R) of Magistrate Judge
Bridget S. Bade, (Doc. 16), regarding Petitioner’s Petition for Writ of Habeas Corpus
filed pursuant to 28 U.S.C. § 2254, (Doc. 1). The R&R recommends that the petition be
denied and dismissed with prejudice. The Magistrate Judge advised the parties that they
had fourteen days to file objections to the R&R. (Doc. 16 at 4 (citing 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6, 72).)
Recommendation on June 24, 2016. (Doc. 17.)
Petitioner filed his Objection to Report and
The Court has considered the objections and reviewed the R&R de novo. See Fed.
R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo
determination of those portions of the R&R to which specific objections are made). The
Court agrees with the Magistrate Judge’s determinations, accepts the recommended
decision within the meaning of Rule 72(b), and overrules Petitioner’s objections. See 28
U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate”). Petitioner has
failed to show that the state court has refused, or will refuse to rule on his Rule 32,
Petition for Post-Conviction Relief, should he file one. Petitioner has failed to show any
factual or legal basis that failure to review his writ of habeas corpus will result in a
fundamental miscarriage of justice. Petitioner has failed to establish that he is entitled to
the appointment of counsel.
IT IS ORDERED that the Report and Recommendation of the Magistrate Judge,
(Doc.16), is ACCEPTED.
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 and leave to proceed in forma pauperis on appeal are
The Clerk of the Court 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.
Dated this 12th day of August, 2016.
Douglas L. Rayes
United States District Judge
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