Martinez #72352 v. Ryan et al

Filing 44

ORDER accepting and adopting 29 Report and Recommendation. It is further Ordered that Petitioner's §2254 Petition (Doc. 1 ) is denied, and this case is dismissed with prejudice. It is further Ordered A Certificate of Appealability is denied and shall not issue. It is further Ordered that the Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 2/23/2015.(MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Martinez,

No. CV-13-00133-TUC-JGZ (BPV)
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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

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States Magistrate Judge Bernardo P. Velasco recommending that Petitioner’s Petition

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pursuant to 28 U.S.C. §2254 be denied. (Doc. 29.) Petitioner Richard Martinez has filed

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objections to the Report. (Doc. 33.) As Petitioner’s objections do not undermine the

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analysis and proper conclusion reached by Magistrate Judge Velasco, Petitioner’s

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objections are rejected, and the Report and Recommendation is adopted.

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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) and Fed. R. App. P. 22(b)(1). Federal Rule of

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Appellate Procedure 22(b) requires the district court that rendered a judgment denying

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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

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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. 29) is accepted and adopted;

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(2) Petitioner’s §2254 Petition (Doc. 1) is denied, and this case is dismissed with

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prejudice;
(3) A Certificate of Appealability is denied and shall not issue; and
(4) The Clerk of the Court shall enter judgment accordingly and close the file in
this matter.
Dated this 23rd day of February, 2015.

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