Kamondai v. Arizona, State of et al

Filing 60

ORDER accepting and adopting the Report and Recommendation (Doc. 58 ). Petitioner's §2254 amended habeas petition (Doc. 8 ) 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 Chief Judge Raner C Collins on 11/4/2016. (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kamondai Richard Young,
Petitioner,

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ORDER

v.

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No. CV 14-00733-TUC-RCC (CRP)

Charles L. Ryan, 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 Pyle that recommends denying Petitioner’s habeas petition filed

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pursuant to 28 U.S.C. §2254. A review of the record reflects that the parties have not

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filed any objections to the Report and Recommendation and the time to file objections

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has expired. As such, the Court will not consider any objections or new evidence.

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The Court has reviewed the record and concludes that Magistrate Judge Pyle’s

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recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. §

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636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th

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Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

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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

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appealability or state why a certificate should not issue."

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§2253(c)(2) provides that a certificate may issue "only if the applicant has made a

Additionally, 28 U.S.C.

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substantial showing of the denial of a constitutional right." In the certificate, the court

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must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A

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substantial showing is made when the resolution of an issue of appeal is debatable among

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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.58) is accepted and adopted.

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(2) Petitioner’s §2254 amended habeas petition (Doc. 8) is denied and this case is

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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 4th day of November, 2016.

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