Simmons #129437 v. Arizona, State of et al
ORDER ADOPTING REPORT AND RECOMMENDATION. The Report and Recommendation (Doc. 41 ) is accepted and adopted; Petitioner's § 2254 Petition 1 is denied and this case is dismissed with prejudice; A Certificate of Appealability is denied and shall not issue; and The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 3/26/2015. (ALS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ricky Lamar Simmons,
Arizona, State of, et al.,
Pending before the Court is a Report and Recommendation issued by United
States Magistrate Eric J. Markovich that recommends denying Petitioner’s habeas
petition filed pursuant to 28 U.S.C. § 2254. (Doc. 41.) As thoroughly explained by
Magistrate Judge Markovich, Petitioner is not entitled to relief as the claims raised in his
petition are not exhausted or are without merit.
undermine the analysis and proper conclusion reached by Magistrate Judge Markovich,
Petitioner’s objections are rejected and the Report and Recommendation is adopted.
As Petitioner’s objections do not
Before Petitioner can appeal this Court's judgment, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of
Appellate Procedure 22(b) requires the district court that rendered a judgment denying
the petition made pursuant to 28 U.S.C. § 2254 to "either issue a certificate of
appealability or state why a certificate should not issue."
§2253(c)(2) provides that a certificate may issue "only if the applicant has made a
substantial showing of the denial of a constitutional right." In the certificate, the court
must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A
Additionally, 28 U.S.C.
substantial showing is made when the resolution of an issue of appeal is debatable among
reasonable jurists, if courts could resolve the issues differently, or if the issue deserves
further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review
of the record in light of the standards for granting a certificate of appealability, the Court
concludes that a certificate shall not issue as the resolution of the petition is not debatable
among reasonable jurists and does not deserve further proceedings.
Accordingly, IT IS HEREBY ORDERED as follows:
1. The Report and Recommendation (Doc. 41) is accepted and adopted;
2. Petitioner’s § 2254 Petition (Doc. 1) is denied and this case is dismissed with
3. A Certificate of Appealability is denied and shall not issue; and
4. The Clerk of the Court shall enter judgment accordingly and close the file in this
Dated this 26th day of March, 2015.
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