Huff v. Ryan et al

Filing 21

AMENDED BY DOC. 22 ORDER accepting and adopting 18 Report and Recommendations. Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice. All other pending motions and requests 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 1/8/2013.(MFR) Modified on 1/8/2013 (MFR).

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 William Louis Huff, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-733-TUC-FRZ (BPV) ORDER 15 16 Pending before the Court is a Report and Recommendation issued by United States 17 Magistrate Judge Velasco that recommends denying Petitioner’s habeas petition filed 18 pursuant to 28 U.S.C. §2254.1 As Petitioner’s objections do not undermine the analysis and 19 proper conclusion reached by Magistrate Judge Velasco, 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 made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why 25 26 27 28 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 a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate 2 may issue "only if the applicant has made a substantial showing of the denial of a 3 constitutional right." In the certificate, the court must indicate which specific issues satisfy 4 this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the 5 resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve 6 the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 7 529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for 8 granting a certificate of appealability, the Court concludes that a certificate shall not issue 9 as the resolution of the petition is not debatable among reasonable jurists and does not 10 11 deserve further proceedings. Accordingly, IT IS HEREBY ORDERED as follows: 12 (1) The Report and Recommendation (Doc. 18) is accepted and adopted. 13 (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. All 14 other pending motions and requests are denied. 15 (3) A Certificate of Appealability is denied and shall not issue. 16 (4) The Clerk of the Court shall enter judgment accordingly and close the file in this matter. 17 18 DATED this 8th day of January, 2013. 19 20 21 22 23 24 25 26 27 28 -2-

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