Simmons #129437 v. Arizona, State of et al

Filing 45

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ricky Lamar Simmons,
Petitioner,

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ORDER

v.

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No. CV-12-00435-TUC-JGZ

Arizona, State of, et al.,

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Respondents.

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

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States Magistrate Eric J. Markovich that recommends denying Petitioner’s habeas

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petition filed pursuant to 28 U.S.C. § 2254. (Doc. 41.) As thoroughly explained by

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Magistrate Judge Markovich, Petitioner is not entitled to relief as the claims raised in his

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petition are not exhausted or are without merit.

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undermine the analysis and proper conclusion reached by Magistrate Judge Markovich,

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Petitioner’s objections are rejected and the Report and Recommendation is adopted.

As Petitioner’s objections do not

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

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

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

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

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appealability or state why a certificate should not issue."

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

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

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

Additionally, 28 U.S.C.

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

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

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

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

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

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among reasonable jurists 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. 41) is accepted and adopted;

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

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prejudice;

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

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

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matter.

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Dated this 26th day of March, 2015.

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