Gillilland v. Roal et al

Filing 26

ORDER adopting 24 Report and Recommendations. Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice. All other pending motions are denied. 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 9/5/2012.(ALS)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jay Bernard Gillilland,
Petitioner,

10
11

vs.

12
Wendy J. Roal, et al.,
13
Respondents.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 11-517-TUC-FRZ (JR)
ORDER

15
16

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

17

Magistrate Judge Rateau1 that recommends denying Petitioner’s habeas petition filed

18

pursuant to 28 U.S.C. §2254.2 As Petitioner’s objections do not undermine the analysis and

19

proper conclusion reached by Magistrate Judge Rateau, Petitioner’s objections are rejected

20

and the Report and Recommendation is adopted.

21

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

22

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

23

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

24
25
26
27
28

1

Magistrate Judge Marshall recently changed her last name to Rateau.

2

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

made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why

2

a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate

3

may issue "only if the applicant has made a substantial showing of the denial of a

4

constitutional right." In the certificate, the court must indicate which specific issues satisfy

5

this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the

6

resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve

7

the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel,

8

529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for

9

granting a certificate of appealability, the Court concludes that a certificate shall not issue

10

as the resolution of the petition is not debatable among reasonable jurists and does not

11

deserve further proceedings.

12

Accordingly, IT IS HEREBY ORDERED as follows:

13

(1) The Report and Recommendation (Doc. 24) is accepted and adopted.

14

(2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. All

15

other pending motions are denied.

16

(3) A Certificate of Appealability is denied and shall not issue.

17

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

18
19

DATED this 5th day of September, 2012.

20
21
22
23
24
25
26
27
28
-2-