Ramirez v. Ryan et al

Filing 35

ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS - IT IS ORDERED that the Magistrate Judge's R&R (Doc. 24 ) is ACCEPTED. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing Pet itioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 4 ) with prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order de nying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. (See document for complete details). Signed by Judge Douglas L Rayes on 5/7/18. (SLQ)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

No. CV-16-08224-PCT-DLR-(ESW)

Jose Jesus Ramirez,

10

Petitioner,

11

v.

12

Charles L. Ryan, et al.,

13

Respondents.

ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

14
15

Pending before the Court is the Report and Recommendation (“R&R”) of

16

Magistrate Judge Eileen S. Willett (Doc. 24) regarding Petitioner Jose Jesus Ramirez’s

17

Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 4).

18

The R&R recommends that the Petition be denied and dismissed with prejudice. The

19

Magistrate Judge advised the parties that they had fourteen days to file objections to the

20

R&R. (Doc. 24 at 37 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6 and 72).) Petitioner

21

filed an objection on March 26, 2018 (Doc. 33), and Respondent filed a response to the

22

objection on April 6, 2018 (Doc. 34).

23

The Court has considered Petitioner’s objections, Respondents’ Response and

24

reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that

25

the court must make a de novo determination of those portions of the Report and

26
27
28

Recommendation to which specific objections are made). The Court agrees with the
Magistrate Judge’s determination that Ground 9 is not cognizable in this proceeding and

1
2
3
4
5

that all other claims set forth in the Amended Petition are procedurally defaulted except
for Grounds 1, 8(b)(iii), (iv), and (v),which are without merit. Petitioner’s objections do
not identify specific areas of the R&R which should not be accepted.

objections are general or merely summarize and reiterate the arguments made in the
Amended Petition.

6
7
8
9

The Court accepts the recommended decision within the meaning of Rule 72(b),
Fed. R. Civ. P., 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”).

10

IT IS ORDERED that the Magistrate Judge’s R&R (Doc.24) is ACCEPTED.

11
12
13
14
15
16
17
18
19
20
21

IT IS FURTHER ORDERED that

the Clerk of the Court enter judgment

denying and dismissing Petitioner’s Amended Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2254 (Doc. 4) with prejudice. The Clerk shall terminate this
action.
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 DENIED because the dismissal of
the Petition is justified by a plain procedural bar and reasonable jurists would not find the
ruling debatable, and because Petitioner has not made a substantial showing of the denial
of a constitutional right.
Dated this 7th day of May, 2018.

22
23
24
25

Douglas L. Rayes
United States District Judge

26
27
28

Petitioner’s

-2