Powell v. Ryan et al

Filing 71

ORDER adopting Report and Recommendations re 64 Report and Recommendation; denying 70 Motion of Objections to the U.S. Magistrate's Report and Recommendation. Petitioner's 2254 habeas petition is denied and this case is dismissed with prejudice. A Cerfificate of Appealability is denied and shall not issue. The Clerk of Court shall enter judgment and close the file in this case. Signed by Senior Judge Frank R Zapata on 8/13/2014.(BAR)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Edward Powell,
Petitioner,

10
11

ORDER

v.

12

No. CV-11-00271-TUC-FRZ

Charles L. Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is a Report and Recommendation [Doc. 64] issued by

16

United States Magistrate Judge D. Thomas Ferraro that recommends denying Petitioner’s

17

Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §2254. 1

18

Petitioner has submitted Petitioner’s Reply and Objection to Magistrate’s Report and

19

Recommendation [Doc. 69] as well as a Motion of Objections to the United States

20

Magistrates (sic) Report and Recommendations (sic) [Doc. 70] (collectively,

21

“Objections”). As Petitioner’s Objections do not undermine the analysis and proper

22

conclusion reached by Magistrate Judge Ferraro, Petitioner’s Objections are rejected and

23

the Report and Recommendation is adopted.

24
25
26
27
28

The Court has reviewed the record and concludes that Magistrate Judge Ferraro’s
1

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).

1

recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. §

2

636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th

3

Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

4

Before Petitioner can appeal this Court's judgment, a certificate of appealability

5

must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of

6

Appellate Procedure 22(b) requires the district court that rendered a judgment denying

7

the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of

8

appealability or state why a certificate should not issue."

9

§2253(c)(2) provides that a certificate may issue "only if the applicant has made a

10

substantial showing of the denial of a constitutional right." In the certificate, the court

11

must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A

12

substantial showing is made when the resolution of an issue of appeal is debatable among

13

reasonable jurists, if courts could resolve the issues differently, or if the issue deserves

14

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

15

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

16

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

17

among reasonable jurists and does not deserve further proceedings.

18

Accordingly, IT IS HEREBY ORDERED as follows:

Additionally, 28 U.S.C.

19

(1) The Report and Recommendation [Doc. 64)] is accepted and adopted;

20

(2) Petitioner’s Motion of Objections to the United States Magistrates Report and

21

Recommendations [Doc. 70] is denied;

22

(3) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice;

23

(4) A Certificate of Appealability is denied and shall not issue; and

24
25
26
27
28

-2-

1
2

(5) The Clerk of the Court shall enter judgment and close the file in this case.
Dated this 13th day of August 2014.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-