Engebretson v. Attorney General of the State of Arizona, et al.

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered the 24 Report and Recommendation is accepted and adopted. It is further Ordered Petitioner's §2254 Amended Petition (Doc. 1 ) is denied and this case is dismissed with prejudice. It is further Ordered Petitioner's Request for an Evidentiary Hearing (Doc. 25 ) is denied. It is further Ordered a Certificate of Appealability is denied and shall not issue. It is further Ordered the Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 6/25/2014. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Roy Bernard Engebretson,
Petitioner,

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ORDER

v.

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No. CV-11-00583-TUC-JGZ (JR)

Attorney General of the State of Arizona, et
al.,

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Respondents.
Pending before the Court is a Report and Recommendation issued by United States
Magistrate Judge Jacqueline M. Rateau that recommends denying Petitioner’s habeas
petition filed pursuant to 28 U.S.C. §2254. (Doc. 24.) As thoroughly explained by
Magistrate Judge Rateau, Petitioner is not entitled to relief as his petition is without merit.
As Petitioner’s objections do not undermine the analysis and proper conclusion reached
by Magistrate Judge Rateau, Petitioner’s objections are rejected and the Report and

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Recommendation is adopted.1 Similarly, Petitioner’s request for an evidentiary hearing

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fails to satisfy the requirements of 28 U.S.C. § 2254(e)(2), and will be denied.

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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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The Court notes that the Report initially “disagreed” with the Arizona Court of
Appeals as to whether Petitioner’s Ground One and Ground Two claims were
procedurally defaulted but then later found them to be defaulted. (Doc. 24, pp. 6, 11, 12.)
This Court adopts the Magistrate Judge’s final analysis that the claims are procedurally
defaulted.

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

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

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

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

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

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

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

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

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standards for granting a certificate of appealability, the Court concludes that a certificate

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shall not issue as the resolution of the petition is not debatable among reasonable jurists

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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. 24) is accepted and adopted;

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(2) Petitioner’s §2254 Amended Petition (Doc. 1) is denied and this case is dismissed

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with prejudice;
(3) Petitioner’s Request for an Evidentiary Hearing (Doc. 25) is denied;
(4) A Certificate of Appealability is denied and shall not issue; and
(5) The Clerk of the Court shall enter judgment accordingly and close the file in this
matter.
Dated this 25th day of June, 2014.

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