Clark v. Ryan et al

Filing 24

ORDER ADOPTING 12 REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED Petitioner's 28:2254 Petition Habeas petition 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 and close the file in this case. Signed by Judge James A Soto on 2/19/15. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Bernard Clark,

No. 4:13-CV-0129-TUC-JAS(JR)

Petitioner,

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v.

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ORDER

Paul O’Connell, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation issued by United

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States Magistrate Judge Jacqueline Rateau that recommends denying Petitioner=s habeas

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petition filed pursuant to 28 U.S.C. '2254.1 As Petitioner=s objections do not undermine

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the analysis and proper conclusion reached by Magistrate Judge Rateau, Petitioner=s
objections are rejected and the Report and Recommendation is adopted.

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The

Court

has

reviewed

the

record

and

Magistrate

Judge

Rateau’s

recommendations de novo, and they are adopted.2 See 28 U.S.C. ' 636(b)(1); Fed. R.

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The Court reviews de novo the objected-to portions of the Report and
Recommendation. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for
clear error the unobjected-to portions of the Report and Recommendation. Johnson v.
Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree,
14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

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A review of the record reflects that Petitioner may have been on parole rather than
probation at the time of filing. This fact makes no difference to the correct legal analysis
contained in the Report and Recommendation.

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Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Conley v.

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Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

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Petitioner’s most strenuous objection to the Report and Recommendation seems to

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be that it “should have included a reference to Kennedy v. Mendoza-Martinez, 372 U.S.

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144, 168-69 (1963).”

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correctly relies on the controlling Supreme Court authority, Smith v. Doe, 538 U.S. 84

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(2003). And in any event, the Report and Recommendation implicitly addresses the key

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prongs of the Mendoza-Martinez test applicable to this case.

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Recommendation at 8-11. A de novo review of the record and pertinent authority reveals

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(Doc. 23 at 3).

However, the Report and Recommendation

See Report and

that explicitly citing Mendoza-Martinez would not materially change the analysis in the
Report and Recommendation.
Before Petitioner can appeal this Court's judgment, a certificate of appealability
must issue. See 28 U.S.C. '2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of
Appellate Procedure 22(b) requires the district court that rendered a judgment denying
the petition made pursuant to 28 U.S.C. '2254 to "either issue a certificate of
appealability or state why a certificate should not issue."

Additionally, 28 U.S.C.

'2253(c)(2) provides that a certificate may issue "only if the applicant has made a
substantial showing of the denial of a constitutional right." In the certificate, the court
must indicate which specific issues satisfy this showing. See 28 U.S.C. '2253(c)(3). A
substantial showing is made when the resolution of an issue of appeal is debatable among
reasonable jurists, if courts could resolve the issues differently, or if the issue deserves
further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 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 debatable

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among reasonable jurists and does not deserve further proceedings.

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Accordingly, IT IS HEREBY ORDERED as follows:

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(1) The Report and Recommendation (Doc. 22) is accepted and adopted.

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(2) Petitioner=s '2254 habeas petition is denied and this case is dismissed with prejudice.

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(3) A Certificate of Appealability is denied and shall not issue.

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(4) The Clerk of the Court shall enter judgment and close the file in this case.

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Dated this 19th day of February, 2015.

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Honorable James A. Soto
United States District Judge

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