Ramsey v. Ryan et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATION. 38 Report and Recommendation, Petitioner's 2254 habeas petition is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. The Clerk of Court shall enter judgment accordingly and close the file in this matter. Signed by Senior Judge Frank R Zapata on 8/16/2013. (BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jay David Ramsey, Sr.,
Petitioner,

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vs.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV 11-101-TUC-FRZ (HCE)
ORDER

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

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

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pursuant to 28 U.S.C. §2254.1 As Petitioner’s objections do not undermine the analysis and

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proper conclusion reached by Magistrate Judge Estrada, 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 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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The Court reviews de novo the objected-to portions of the Report and Recommendation.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to
portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

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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.
Accordingly, IT IS HEREBY ORDERED as follows:

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(1) The Report and Recommendation (Doc. 38) is accepted and 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 and shall not issue.

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

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DATED this 16th day of August, 2013.

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