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