Bevel v. Ryan et al

Filing 16

ORDER ADOPTING 14 Report and Recommendation, and DENYING 15 Motion for Certificate of Appealability filed by Gregory Allen Bevel. Petitioners §2254 habeas petition is denied and this case is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Senior Judge Frank R Zapata on 5/9/14. (SMBE)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Gregory A. Bevel, Petitioner, 9 10 vs. 11 Charles L. Ryan, et al., 12 Respondents. 13 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-823-TUC-FRZ (LAB) ORDER 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Bowman that recommends denying Petitioner’s habeas petition filed 17 pursuant to 28 U.S.C. §2254. A review of the record reflects that the parties have not filed 18 any objections to the Report and Recommendation and the time to file objections has expired. 19 As such, the Court will not consider any objections or new evidence. 20 The Court has reviewed the record and concludes that Magistrate Judge Bowman’s 21 recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 636(b)(1); 22 Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); 23 Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 24 Petitioner has filed a motion for a certificate of appealability. Before Petitioner can appeal 25 this Court's judgment, a certificate of appealability must issue. See 28 U.S.C. §2253(c) and 26 Fed. R. App. P. 22(b)(1). Federal Rule of Appellate Procedure 22(b) requires the district 27 court that rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 to 28 "either issue a certificate of appealability or state why a certificate should not issue." 1 Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the 2 applicant has made a substantial showing of the denial of a constitutional right." In the 3 certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C. 4 §2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is 5 debatable among reasonable jurists, if courts could resolve the issues differently, or if the 6 issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 7 Upon review of the record in light of the standards for granting a certificate of appealability, 8 the Court concludes that a certificate shall not issue as the resolution of the petition is not 9 debatable among reasonable jurists and does not deserve further proceedings. 10 Accordingly, IT IS HEREBY ORDERED as follows: 11 (1) The Report and Recommendation (Doc. 14) is accepted and adopted. 12 (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 13 (3) Petitioner’s motion (Doc. 15) is denied; a Certificate of Appealability is denied and shall 14 not issue. 15 (4) The Clerk of the Court shall enter judgment accordingly and close the file in this matter. 16 17 DATED this 9th day of May, 2014. 18 19 20 21 22 23 24 25 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?