Almazan v. State of Arizona Superior Court et al

Filing 18

ORDER ADOPTING 17 Report and Recommendations. Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)is DENIED. Clerk of the Court shall enter judgment and shall then close its file. A Certificate of Appealability shall not issue in this case. Signed by Judge Cindy K Jorgenson on 12/15/11. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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REGINALDO ALMAZAN,
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Petitioner,
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vs.
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CHARLES L. RYAN,
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Respondent.
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No. CIV 10-067-TUC-CKJ (CRP)
ORDER

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On August 15, 2011, Magistrate Judge Charles R. Pyle issued a Report and

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Recommendation (Doc. 17) in which he recommended denial of Petitioner's Petition for Writ

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of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). No objections have been filed

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within the time provided by 28 U.S.C. § 636(b)(1). After an independent review, the Court

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finds it is appropriate to adopt the Report and Recommendation and deny the Petition for

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Writ of Habeas Corpus.

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Certificate of Appealability (“COA”)

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Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the

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“district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.” Such certificates are required in cases concerning detention arising

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“out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking

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a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is

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brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court

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judgment. This Court must determine, therefore, if a COA shall issue.

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The standard for issuing a COA is whether the applicant has “made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy §

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2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner's

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underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

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jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling.” Id.; see also Robbins v. Carey, 481 F.3d

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1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge’s conclusions does not

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automatically waive appellate challenge) In the certificate, the Court must indicate which

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specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).

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The Court finds that reasonable jurists would not find the district court's assessment

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of the constitutional claims debatable or wrong. Further, the Court finds that jurists of reason

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would not find it debatable whether the Petition stated a valid claim of the denial of a

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constitutional right or whether the district court was correct in any procedural rulings. A

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COA shall not issue.

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Accordingly, IT IS ORDERED:

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The Report and Recommendation (Doc. 17 is ADOPTED.

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2.

The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)

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is DENIED.
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The Clerk of the Court shall enter judgment and shall then close its file in this

matter.
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A Certificate of Appealability shall not issue in this case.

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DATED this 15th day of December, 2011.

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