Gilpin v. Ryan et al

Filing 45

ORDER ADOPTING 43 Report and Recommendations and all other pending Motions ( 38 42 39 40 41 37 34 ) are Denied as Moot. A Certificate of Appealability is denied. The Clerk of the Court shall enter judgment and close the file. Signed by Judge Jennifer G Zipps on 1/16/13. (SMBE)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 No. CV-10-700-TUC-JGZ (BGM) James Van Gilpin, 9 Petitioner, 10 vs. 11 ORDER Charles L. Ryan, et al., 12 Respondents. 13 14 Pending before the Court is a Report and Recommendation issued by United 15 States Magistrate Judge Bruce G. Macdonald that recommends denying Petitioner’s 16 habeas petition filed pursuant to 28 U.S.C. §2254. (Doc. 43.) As thoroughly explained 17 by Magistrate Judge Macdonald, Petitioner is not entitled to relief as his petition is 18 without merit. As Petitioner’s objections do not undermine the analysis and proper 19 conclusion reached by Magistrate Judge Macdonald, Petitioner’s objections are rejected 20 and the Report and Recommendation is adopted. 21 Before Petitioner can appeal this Court's judgment, a certificate of appealability 22 must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of 23 Appellate Procedure 22(b) requires the district court that rendered a judgment denying 24 the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of 25 appealability or state why a certificate should not issue." 26 27 28 Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." In the certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A 1 substantial showing is made when the resolution of an issue of appeal is debatable among 2 reasonable jurists, if courts could resolve the issues differently, or if the issue deserves 3 further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review 4 of the record in light of the standards for granting a certificate of appealability, the Court 5 concludes that a certificate shall not issue as the resolution of the petition is not debatable 6 among reasonable jurists and does not deserve further proceedings. 7 Accordingly, IT IS HEREBY ORDERED as follows: 8 (1) The Report and Recommendation (Doc. 43) is accepted and adopted; 9 (2) Petitioner’s §2254 Amended Petition (Doc. 5) is denied and this case is dismissed 10 11 12 with prejudice; (3) All other pending Motions (Docs. 34, 37, 38, 39, 40, 41 and 42) are DENIED AS MOOT; 13 (3) A Certificate of Appealability is denied and shall not issue; and 14 (4) The Clerk of the Court shall enter judgment accordingly and close the file in this 15 16 matter. Dated this 16th day of January, 2013. 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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