Dixon v. Ryan et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS. 18 Report and Recommendations,The Petition 1 denied and this case is dismissed. The Clerk of the Court is directed to close this case and enter jgm accordingly. All pending motions in this case are denied in light of this order. Signed by Chief Judge John M Roll on 09/13/10. (LMF)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This case involves a Petition Under 28 U.S.C. § 2254 For a Writ of Habeas Corpus filed by Petitioner Rupert Ray Dixon on March 20, 2009 (Doc. 1). On September 23, 2009, after a thorough and well-documented analysis, Magistrate Judge Jennifer C. Guerin issued a Report and Recommendation ("R&R") to this Court, recommending that the Petition for Writ of Habeas Corpus be denied. On September 29, 2009 Petitioner filed his objections to the R&R. After an independent review of the record and a de novo review of the portions of the R&R to which Petitioner has objected, the Court adopts the Magistrate Judge's R&R in whole. In his objections to the R&R, Petitioner does not raise any new issues of fact or law but merely reiterates the arguments and claims he has already made in his Petition, his Reply/Traverse to the Petition, and the briefs filed in his direct appeal and post-conviction relief proceedings in state court. All of Petitioner's arguments have been adequately vs. Charles L. Ryan, et al., Respondents. Rupert Ray Dixon, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-162-TUC-JMR ORDER ADOPTING MAGISTRATE JUDGE'S R&R AND DENYING PETITION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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addressed by the Magistrate Judge in her R&R. Petitioner's claims are without merit and his Petition must be denied. In addition, Petitioner has filed numerous requests for an evidentiary hearing (see Docs. 13, 15, 16, 19, 20). As the Magistrate Judge notes in her R&R, Petitioner is entitled to an evidentiary hearing on a claim only if he alleges "facts that, if proven, would entitle him to relief." Turner v. Calderon, 281 F.3d 851, 890 (9th Cir. 2002) (quoting Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999)). In other words, Petitioner "must allege a colorable constitutional claim." Id. Magistrate Judge Guerin is correct that here, Petitioner challenges the legal conclusions of the state court without alleging any facts which, if proven, would entitle him to relief. Therefore, Petitioner is not entitled to an evidentiary hearing. Accordingly, IT IS HEREBY ORDERED that the REPORT AND RECOMMENDATION of Magistrate Judge Guerin (Doc. 18) is ADOPTED in whole. The Petition (Doc. 1) is DENIED and this case is DISMISSED. The Clerk of Court is directed to close this case and enter judgment accordingly. IT IS FURTHER ORDERED that all pending motions in this case are denied in light of this Order. DATED this 13th day of September, 2010.

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