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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julio Cesar Tapia, No. CV-13-00059-TUC-RM Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the Court is Petitioner Julio Cesar Tapia’s Petition for Writ of 16 Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1), and a Report and Recommendation 17 (Doc. 13) issued by Magistrate Judge Jacqueline M. Rateau. Judge Rateau recommends 18 denying Petitioner’s § 2254 Petition as untimely. Petitioner filed an Objection (Doc. 19) 19 to Judge Rateau’s Report and Recommendation. 20 A district judge must “make a de novo determination of those portions” of a 21 magistrate judge’s “report or specified proposed findings or recommendations to which 22 objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Rule 8(b) of the Rules Governing 23 2254 Cases in the United States District Courts. 24 independent review of the instant Petition, the Report and Recommendation, and the 25 record. The Court finds that Judge Rateau’s Report and Recommendation appropriately 26 recommends denial of the Petition as untimely. Nothing in Petitioner’s Objection alters 27 any of the conclusions made by Judge Rateau. 28 This Court has made a full and Before Petitioner can appeal this Court’s judgment, a certificate of appealability 1 must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1). A certificate may issue 2 “only if the applicant has made a substantial showing of the denial of a constitutional 3 right.” 28 U.S.C. §2253(c)(2). A substantial showing is made if “reasonable jurists 4 could debate whether . . . the petition should have been resolved in a different manner,” 5 or if “the issues presented were adequate to deserve encouragement to proceed further.” 6 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation omitted). Upon review 7 of the record in light of the standards for granting a certificate of appealability, the Court 8 concludes that a certificate shall not issue, as the resolution of the Petition is not 9 debatable among reasonable jurists and does not deserve encouragement to proceed 10 further. 11 Accordingly, 12 IT IS HEREBY ORDERED: 13 1. 14 Magistrate Judge Rateau’s Report and Recommendation (Doc. 13) is accepted and adopted. 15 2. Petitioner’s Objection (Doc. 19) is overruled. 16 3. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is denied. 17 4. This case is dismissed with prejudice. The Clerk of Court is directed to 18 enter judgment accordingly and close this case. 19 5. 20 Dated this 17th day of February, 2016. The Court declines to issue a certificate of appealability. 21 22 23 Honorable Rosemary Márquez United States District Judge 24 25 26 27 28 -2-

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