Lacey v. Ryan

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS 15 , Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied. The Clerk of the Court shall enter judgment and close the file in this matter.Signed by Senior Judge Frank R Zapata on 7/15/11. (See attached PDF for complete information.)(KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lee Lacey,
Petitioner,

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vs.

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Charles Ryan, et al.,
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Respondents.
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No. CV 10-323-TUC-FRZ (BPV)
ORDER

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

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Magistrate Judge Velasco that recommends denying Petitioner’s habeas petition filed

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pursuant to 28 U.S.C. §2254. A review of the record reflects that the parties have not filed

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any objections to the Report and Recommendation and the time to file objections has expired.

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As such, the Court will not consider any objections or new evidence.

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The Court has reviewed the record and concludes that Magistrate Judge Velasco’s

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recommendations are not clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72;

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Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Conley v. Crabtree, 14

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F. Supp. 2d 1203, 1204 (D. Or. 1998). The Report and Recommendation is adopted and the

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§2254 petition is dismissed with prejudice.

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Before Petitioner can appeal this Court's judgment, a certificate of appealability must

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issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate

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Procedure 22(b) requires the district court that rendered a judgment denying the petition

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made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why

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a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate

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may issue "only if the applicant has made a substantial showing of the denial of a

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constitutional right." In the certificate, the court must indicate which specific issues satisfy

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this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the

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resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve

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the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel,

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529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for

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granting a certificate of appealability, the Court concludes that a certificate shall not issue

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as the resolution of the petition is not debatable among reasonable jurists and does not

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deserve further proceedings.

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Accordingly, IT IS HEREBY ORDERED as follows:

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(1) Magistrate Judge Velasco’s Report and Recommendation (Doc. 15) is accepted and

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adopted.

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(2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice.

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(3) A Certificate of Appealability is denied.

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

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DATED this 15th day of July, 2011.

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