Pellecier v. Palosaari, et al

Filing 83

IT IS HEREBY ORDERED as follows: The Report and Recommendation (Doc. 73) is accepted and adopted. Petitioners motion for an evidentiary hearing and §2254 habeas petition are denied and this case is dismissed with prejudice. A Certificate of Appealability shall issue as referenced above.The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Senior Judge Frank R Zapata on 3/26/13.(KAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edwin Anthony Pellecier,
Petitioner,

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vs.

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John Palosaari, et al.,
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Respondents.
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No. CV 05-159-TUC-FRZ (DTF)
ORDER

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Pending before the Court is a Report and Recommendation issued by United States

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Magistrate Judge Ferraro that recommends denying Petitioner’s motion for an evidentiary

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hearing and habeas petition filed pursuant to 28 U.S.C. §2254.1 As Petitioner’s objections

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do not undermine the analysis and proper conclusion reached by Magistrate Judge Ferraro,

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Petitioner’s objections are rejected and the Report and Recommendation is adopted.

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Rule 22(b) of the Federal Rules of Appellate Procedure provides that a petitioner cannot

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take an appeal unless a certificate of appealability has been issued by an appropriate judicial

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officer. Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district

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judge must either issue or deny a certificate of appealability when it enters a final order

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The Court reviews de novo the objected-to portions of the Report and Recommendation.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to
portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

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adverse to the petitioner. If a certificate is issued, the court must state the specific issue or

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issues that satisfy 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may

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issue only when the petitioner "has made a substantial showing of the denial of a

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constitutional right." This showing can be established by demonstrating that "reasonable

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jurists could debate whether (or, for that matter, agree that) the petition should have been

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resolved in a different manner" or that the issues were "adequate to deserve encouragement

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to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that

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reasonable jurists could debate the resolution of Grounds 1 through 12 of the Amended

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Petition, and a COA is therefore issued as to Grounds 1 through 12 of the Amended Petition.

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See Doc. 42 at pp. 5-17.
Accordingly, IT IS HEREBY ORDERED as follows:

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(1) The Report and Recommendation (Doc. 73) is accepted and adopted.

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(2) Petitioner’s motion for an evidentiary hearing and §2254 habeas petition are denied and

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this case is dismissed with prejudice.

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(3) A Certificate of Appealability shall issue as referenced above.

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(4) The Clerk of the Court shall enter judgment accordingly and close the file in this matter.

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DATED this 26th day of March, 2013.

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