Halstead v. Apker

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS 14 . 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. Signed by Senior Judge Frank R Zapata on 1/12/12. (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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Ronald Laverne Halstead,
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Petitioner,
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vs.
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Lionel Craig Apker,
Respondent.

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No. CV 11-225-TUC-FRZ (JJM)
ORDER

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Pending before the Court is a Report and Recommendation issued by United States
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Magistrate Judge Marshall that recommends denying Petitioner’s habeas petition filed
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pursuant to 28 U.S.C. §2241. As throughly explained by Magistrate Judge Marshall, the
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petition must be denied as Petitioner fails to demonstrate any viable grounds entitling him
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to habeas relief.1 As Petitioner’s objections do not undermine the analysis and proper

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conclusions reached by Magistrate Judge Marshall, Petitioner’s objections are rejected and
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the Report and Recommendation is adopted.
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To the extent a certificate of appealability must issue before Petitioner can appeal,2 it is

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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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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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denied. 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 to

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"either issue a certificate of 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

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applicant has made a substantial showing of the denial of a constitutional right." In the

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certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C.

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§2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is

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debatable among reasonable jurists, if courts could resolve the issues differently, or if the

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issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

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Upon review of the record in light of the standards for granting a certificate of appealability,

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the Court concludes that a certificate shall not issue as the resolution of the petition is not

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debatable 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. 14) 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.

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DATED this 12th day of January, 2012.

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