Leal #241025 v. Ryan et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that the 36 Report and Recommendation is accepted and adopted. It is further Ordered Petitioner's §2254 Petition (Doc. 1 ) is denied. It is further Ordered a Certificate of Ap pealability is denied and shall not issue. It is further Ordered the Clerk of the Court shall FILE UNDER SEAL Docs. 1 , 20 , 24 and 28 . This case is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 8/30/2017. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Miguel Daniel Leal,
Petitioner,

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ORDER

v.

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No. CV-14-02271-TUC-JGZ

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 Lynette C. Kimmins that recommends denying Petitioner’s Habeas

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Petition filed pursuant to 28 U.S.C. §2254. (Doc. 36.) Petitioner filed an Objection to

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the R&R on June 26, 2017. (Doc. 37.) For the reasons stated herein, the Court will deny

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the Objection and adopt the R&R.

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When reviewing a Magistrate Judge's Report and Recommendation, this Court

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“shall make a de novo determination of those portions of the report ... to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley

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Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate

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Judge's recommendation relieves the Court of conducting de novo review of the

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Magistrate Judge's factual findings; the Court then may decide the dispositive motion on

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the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing

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Campbell v. United States Dist. Ct., 501 F.2d 196 (9th Cir. 1974)).

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As thoroughly explained by Magistrate Judge Kimmins, the claims in Petitioner’s

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petition are procedurally defaulted and/or without merit. As Petitioner’s objections do

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not undermine the analysis and proper conclusion reached by Magistrate Judge Kimmins,

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Petitioner’s 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 Fed. R. App. P. 22(b)(1) (the applicant cannot take an appeal unless a

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circuit justice or a circuit or district judge issues a certificate of appealability under 28

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U.S.C. § 2253(c)). Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may

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

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right. In the certificate, the court must indicate which specific issues satisfy this showing.

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See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an

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issue of appeal is debatable among reasonable jurists, if courts could resolve the issues

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differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S.

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473, 484-85 (2000). Upon review of the record in light of the standards for granting a

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certificate of appealability, the Court concludes that a certificate shall not issue as the

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resolution of the petition is not debatable among reasonable jurists and does not deserve

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further proceedings.

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Finally, the Court notes that numerous filings by Petitioner violate Rule 5.2, Fed.

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R. Civ. P., in that they contain the name of an individual known to be a minor. The Court

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will order the Clerk of the Court to seal those filings.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. The Report and Recommendation (Doc. 36) is accepted and adopted;

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2. Petitioner’s §2254 Petition (Doc. 1) is denied;

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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 FILE UNDER SEAL Docs. 1, 20, 24 and 28; and

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5. This case is dismissed with prejudice. The Clerk of the Court shall enter judgment

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accordingly and close the file in this matter.

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Dated this 30th day of August, 2017.

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