Mann v. Apker

Filing 16

ORDER ADOPTING 12 Report and Recommendations. Petitioner's §2241 habeas petition is denied; this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. (see attached pdf for complete infomation) Signed by Senior Judge Frank R Zapata on 10/4/2011. (GCP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bobby Joe Mann,
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Petitioner,
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vs.
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Craig Apker,
Respondent.

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No. CV 11-115-TUC-FRZ (JCG)
ORDER

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Pending before the Court is a Report and Recommendation issued by United States
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Magistrate Judge Guerin that recommends denying Petitioner’s habeas petition filed pursuant
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to 28 U.S.C. §2241. As throughly explained by Magistrate Judge Guerin, the petition must
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be denied as Petitioner fails to demonstrate any viable grounds entitling him to habeas relief.1

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As Petitioner’s objections do not undermine the analysis and proper conclusions reached by
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Magistrate Judge Guerin, Petitioner’s objections are rejected and the Report and
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Recommendation is adopted.
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Before Petitioner can appeal this Court's judgment, a certificate of appealability must
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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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issue.2 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) The Report and Recommendation (Doc. 12) is accepted and adopted.

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(2) Petitioner’s §2241 habeas petition is denied; 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.
DATED this 4th day of October, 2011.

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Although Petitioner has brought his claims in a § 2241 petition, a certificate of appealability
is required where a § 2241 petition attacks the petitioner's conviction or sentence. See Porter v.
Adams, 244 F.3d 1006 (9th Cir. 2001).

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