Virgen v. Dupnik

Filing 25

ORDER ADOPTING 24 REPORT AND RECOMMENDATION. Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. Signed by Judge James A Soto on 11/21/2016. (See attached Order for details) (KEP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Saul Virgen, Petitioner, 9 10 vs. 11 Clarence W. Dupnik, et al., 12 Respondents. 13 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 14-2414-TUC-JAS (LCK) ORDER 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Kimmins that recommends denying Petitioner’s habeas petition filed 17 pursuant to 28 U.S.C. §2254. A review of the record reflects that the parties have not filed 18 any objections to the Report and Recommendation and the time to file objections has expired. 19 As such, the Court will not consider any objections or new evidence. 20 The Court has reviewed the record and concludes that Magistrate Judge Kimmins’ 21 recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 636(b)(1); 22 Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); 23 Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 24 Before Petitioner can appeal this Court's judgment, a certificate of appealability must 25 issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate 26 Procedure 22(b) requires the district court that rendered a judgment denying the petition 27 made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why 28 a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate 1 may issue "only if the applicant has made a substantial showing of the denial of a 2 constitutional right." In the certificate, the court must indicate which specific issues satisfy 3 this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the 4 resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve 5 the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 6 529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for 7 granting a certificate of appealability, the Court concludes that a certificate shall not issue 8 as the resolution of the petition is not debatable among reasonable jurists and does not 9 deserve further proceedings. 10 Accordingly, IT IS HEREBY ORDERED as follows: 11 (1) The Report and Recommendation (Doc. 24) is accepted and adopted. 12 (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 13 (3) A Certificate of Appealability is denied and shall not issue. 14 (4) The Clerk of the Court shall enter judgment and close the file in this case. 15 16 DATED this 21st day of November, 2016. 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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