Berrones #133399 v. Ryan et al

Filing 23

ORDER adopting Report and Recommendations re 19 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. The Clerk of the Court shall enter judgment and close the file in this case. Signed by Judge James A Soto on 10/27/2015. (KEP)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Francisco Alberto Berrones, Petitioner, 9 10 vs. 11 Charles Ryan, et al. 12 Respondents. 13 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 15-18-TUC-JAS (LAB) ORDER 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Bowman that recommends denying Petitioner’s habeas petition filed 17 pursuant to 28 U.S.C. §2254.1 As Petitioner’s objections do not undermine the analysis and 18 proper conclusion reached by Magistrate Judge Bowman, Petitioner’s objections are rejected 19 and the Report and Recommendation is adopted. 20 The Court has reviewed the record and concludes that Magistrate Judge Bowman’s 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 25 26 27 28 1 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). 1 Before Petitioner can appeal this Court's judgment, a certificate of appealability must 2 issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate 3 Procedure 22(b) requires the district court that rendered a judgment denying the petition 4 made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why 5 a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate 6 may issue "only if the applicant has made a substantial showing of the denial of a 7 constitutional right." In the certificate, the court must indicate which specific issues satisfy 8 this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the 9 resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve 10 the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 11 529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for 12 granting a certificate of appealability, the Court concludes that a certificate shall not issue 13 as the resolution of the petition is not debatable among reasonable jurists and does not 14 deserve further proceedings. 15 Accordingly, IT IS HEREBY ORDERED as follows: 16 (1) The Report and Recommendation (Doc. 19) is accepted and adopted. 17 (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 18 (3) A Certificate of Appealability is denied and shall not issue. 19 (4) The Clerk of the Court shall enter judgment and close the file in this case. 20 21 DATED this 27th day of October, 2015. 22 23 24 25 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?