Wheeler v. Ryan et al

Filing 68

ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS: The Report and Recommendation of the Magistrate Judge 62 is accepted. Petitioner's Motion for Clarification 40 , and Motion to Strike Respondents' Answer 60 are denied as moot. Petitioner's Motion to Expand the Record and Request Discovery 33 , Motion for Deposition and Discovery 34 , Motion for Extension of Time to File Reply and Supporting Documents 43 , Motion to Expand the Record 44 , Motio n to Amend/Correct Appendi[x] A 46 , Motion for Extension of Time to File Supplemental Memorandum of Points and Authority 54 , and Motion to Expand the Record and Compel Disclosure 57 are denied. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 22 with prejudice. The Clerk shall terminate this action. A request for a certificate of appealability is denied beca use appellant has not shown that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Signed by Senior Judge Neil V Wake on 9/26/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Everett Wheeler,
Petitioner,

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v.
Charles L. Ryan; et al.,
Respondents.

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No. CV-18-08081-PHX-NVW (DMF)
ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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

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Magistrate Judge Deborah M. Fine (Doc. 62) regarding petitioner’s Amended Petition for

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Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 22).

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

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Judge advised the parties that they had fourteen days to file objections to the R&R.

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(R&R at 16 (citing 28 U.S.C. § 636(b)(1)). Petitioner filed objections on September 20,

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2018 (Doc. 66). Respondents filed a response to Petitioner’s Objections on September

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24, 2018 (Doc. 67).

The R&R

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The Court has considered the objections and reviewed the Report and

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

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

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Recommendation to which specific objections are made). The Court agrees with the

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Magistrate Judge’s determinations, accepts the recommended decision within the

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meaning of Rule 72(b), Fed. R. Civ. P., 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”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc.62) is accepted.
IT IS FURTHER ORDERED that Petitioner’s Motion for Clarification (Doc. 40),
and Motion to Strike Respondents’ Answer (Doc. 60) each be denied as moot.

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IT IS FURTHER ORDERED that Petitioner’s Motion to Expand the Record and

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Request Discovery (Doc. 33), Motion for Deposition and Discovery (Doc. 34), Motion

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for Extension of Time to File Reply and Supporting Documents (Doc. 43), Motion to

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Expand the Record (Doc. 44), Motion to Amend/Correct Appendi[x] A (Doc. 46),

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Motion for Extension of Time to File Supplemental Memorandum of Points and

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Authority (Doc. 54), and Motion to Expand the Record and Compel Disclosure (Doc.

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57), each be denied.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

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and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§ 2254 (Doc. 22) with prejudice. The Clerk shall terminate this action.

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A request for a certificate of appealability is denied because appellant has not

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shown that “jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right and that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v.

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Thaler, 132 S. Ct. 641, 648 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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Dated this 26th day of September, 2018.

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