Baker v. Ryan et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION 15 . Petitioner's §2254 Petition (Doc. 1 ) is denied and this case is dismissed with prejudice. 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 Judge Jennifer G Zipps on 6/26/14. (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Lee Baker, No. CV-12-00674-TUC-JGZ Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 Pending before the Court is a Report and Recommendation issued by United 15 States Magistrate Bernardo P. Velasco that recommends denying Petitioner’s habeas 16 petition filed pursuant to 28 U.S.C. §2254. (Doc. 15.) As thoroughly explained by 17 Magistrate Judge Velasco, Petitioner is not entitled to relief as his petition is untimely. 18 As Petitioner’s objections do not undermine the analysis and proper conclusion reached 19 by Magistrate Judge Velasco, Petitioner’s objections are rejected and the Report and 20 Recommendation is adopted. 21 Before Petitioner can appeal this Court's judgment, a certificate of appealability 22 must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of 23 Appellate Procedure 22(b) requires the district court that rendered a judgment denying 24 the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of 25 appealability or state why a certificate should not issue." 26 §2253(c)(2) provides that a certificate may issue "only if the applicant has made a 27 substantial showing of the denial of a constitutional right." In the certificate, the court 28 must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A Additionally, 28 U.S.C. 1 substantial showing is made when the resolution of an issue of appeal is debatable among 2 reasonable jurists, if courts could resolve the issues differently, or if the issue deserves 3 further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review 4 of the record in light of the standards for granting a certificate of appealability, the Court 5 concludes that a certificate shall not issue as the resolution of the petition is not debatable 6 among reasonable jurists and does not deserve further proceedings. 7 Accordingly, IT IS HEREBY ORDERED as follows: 8 1. The Report and Recommendation (Doc. 15) is accepted and adopted; 9 2. Petitioner’s §2254 Petition (Doc. 1) is denied and this case is dismissed with 10 prejudice; 11 3. A Certificate of Appealability is denied and shall not issue; and 12 4. The Clerk of the Court shall enter judgment accordingly and close the file in this 13 matter. 14 Dated this 26th day of June, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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