Fontenot v. Ryan et al
ORDER adopting 40 Report and Recommendation: It is hereby ordered that Magistrate Judge Markovich's Report and Recommendation (Doc. 40 ) is accepted and adopted; Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED; This case is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly. Signed by Judge Jennifer G Zipps on 1/11/2018. (SIB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Derrick Berry Fontenot,
Charles Ryan, et al.,
Pending before the Court is a Report and Recommendation issued by United
States Magistrate Judge Eric J. Markovich that recommends denying Petitioner’s Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 40.)
A review of the record reflects that the parties have not filed any objections to the
Report and Recommendation and the time to file objections has expired. As such, the
Court will not consider any objections or new evidence.
The Court has reviewed the record and concludes that Magistrate Judge
Markovich’s recommendations are not clearly erroneous. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72; 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).
Before Petitioner can appeal this Court's judgment, a certificate of appealability
must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of
Appellate Procedure 22(b) requires the district court that rendered a judgment denying
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."
§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
further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review
of the record in light of the standards for granting a certificate of appealability, the Court
concludes that a certificate shall not issue as the resolution of the petition is not debatable
Additionally, 28 U.S.C.
among reasonable jurists and does not deserve further proceedings.
Accordingly, IT IS HEREBY ORDERED as follows:
Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DENIED;
This case is dismissed with prejudice. The Clerk of the Court shall enter judgment
Magistrate Judge Markovich’s Report and Recommendation (Doc. 40) is accepted
Dated this 11th day of January, 2018.
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