Vargas v. Ryan et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered Magistrate Judge Rateau's Report and Recommendation (Doc. 15 ) is accepted and adopted. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. This case is dismissed with prejudice. The Clerk of Court is directed to enter judgment accordingly. The Court declines to issue a certificate of appealability. Signed by Judge Rosemary Marquez on 3/25/2015. (MFR)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Roberto Vargas,

No. CV-12-00772-TUC-RM
Petitioner,

10
11

v.

12

ORDER

Charles L. Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is a Report and Recommendation (Doc. 15) issued by

16

Magistrate Judge Jacqueline M. Rateau. In the Report and Recommendation, Judge

17

Rateau recommends denying Petitioner Robert Vargas’s Petition for Writ of Habeas

18

Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254.

19

On December 12, 2014, Petitioner filed a Motion for Extension of Time (Doc. 16)

20

to file objections to Judge Rateau’s Report and Recommendation. The Court granted the

21

Motion on December 17, 2014, and ordered that Petitioner’s objections be filed no later

22

than February 13, 2015 (see Doc. 17). A review of the docket shows that, to date,

23

Petitioner has not filed objections to Judge Rateau’s Report and Recommendation.

24

A district judge must “make a de novo determination of those portions” of a

25

magistrate judge’s “report or specified proposed findings or recommendations to which

26

objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Rule 8(b) of the Rules Governing

27

2254 Cases in the United States District Courts. The advisory committee notes to Rule

28

72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is

1

filed, the court need only satisfy itself that there is no clear error on the face of the record

2

in order to accept the recommendation” of a magistrate judge. See also Prior v. Ryan,

3

2012 WL 1344286, *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to

4

portions of Report and Recommendation on § 2254 petition); Johnson v. Zema Sys.

5

Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is

6

made, the district court judge reviews those unobjected portions for clear error.”).

7

The Court has reviewed the record and finds no error in Judge Rateau’s thorough

8

and carefully reasoned Report and Recommendation.

9

Recommendation will be adopted in full and Petitioner’s § 2254 Petition will be denied.

Accordingly, the Report and

10

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

11

must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1). A certificate may issue

12

“only if the applicant has made a substantial showing of the denial of a constitutional

13

right.” 28 U.S.C. §2253(c)(2). In the certificate, the court must indicate which specific

14

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

15

“reasonable jurists could debate whether . . . the petition should have been resolved in a

16

different manner,” of if “the issues presented were adequate to deserve encouragement to

17

proceed further.”

18

quotation omitted). Upon review of the record in light of the standards for granting a

19

certificate of appealability, the Court concludes that a certificate shall not issue as the

20

resolution of the Petition is not debatable among reasonable jurists and does not deserve

21

further proceedings.

See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (internal

22

IT IS HEREBY ORDERED:

23

1. Magistrate Judge Rateau’s Report and Recommendation (Doc. 15) is accepted

24

and adopted.

25

2. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is denied.

26

3. This case is dismissed with prejudice. The Clerk of Court is directed to enter

27

judgment accordingly.

28

....

-2-

1

4. The Court declines to issue a certificate of appealability.

2

Dated this 25th day of March, 2015.

3
4
5

Honorable Rosemary Márquez
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-