Tapia v. Ryan et al

Filing 21

ORDER: Magistrate Judge Rateau's Report and Recommendation (Doc. 13 ) is accepted and adopted. Petitioner's Objection (Doc. 19 ) is overruled. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. This case is dismis sed with prejudice. The Clerk of Court is directed to enter judgment accordingly and close this case. The Court declines to issue a certificate of appealability. Signed by Judge Rosemary Marquez on 2/17/2016. (See attached Order for complete information)(DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Julio Cesar Tapia,

No. CV-13-00059-TUC-RM
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Julio Cesar Tapia’s Petition for Writ of

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Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1), and a Report and Recommendation

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(Doc. 13) issued by Magistrate Judge Jacqueline M. Rateau. Judge Rateau recommends

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denying Petitioner’s § 2254 Petition as untimely. Petitioner filed an Objection (Doc. 19)

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to Judge Rateau’s Report and Recommendation.

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

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

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

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2254 Cases in the United States District Courts.

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independent review of the instant Petition, the Report and Recommendation, and the

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record. The Court finds that Judge Rateau’s Report and Recommendation appropriately

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recommends denial of the Petition as untimely. Nothing in Petitioner’s Objection alters

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any of the conclusions made by Judge Rateau.

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This Court has made a full and

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); Fed. R. App. P. 22(b)(1). A certificate may issue

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

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right.” 28 U.S.C. §2253(c)(2). A substantial showing is made if “reasonable jurists

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could debate whether . . . the petition should have been resolved in a different manner,”

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or if “the issues presented were adequate to deserve encouragement to proceed further.”

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Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation omitted). 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

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debatable among reasonable jurists and does not deserve encouragement to proceed

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further.

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Accordingly,

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IT IS HEREBY ORDERED:

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1.

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Magistrate Judge Rateau’s Report and Recommendation (Doc. 13) is

accepted and adopted.

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2.

Petitioner’s Objection (Doc. 19) is overruled.

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3.

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

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4.

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

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enter judgment accordingly and close this case.

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5.

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Dated this 17th day of February, 2016.

The Court declines to issue a certificate of appealability.

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Honorable Rosemary Márquez
United States District Judge

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