Castillo v. Ryan et al

Filing 20

ORDER accepting and adopting 18 The Report and Recommendation. Petitioner's §2254 Petition (Doc. 1 ) is denied. A Certificate of Appealability is denied and shall not issue. 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 6/14/2017. (DPS)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rene Anthony Castillo, Petitioner, 10 11 ORDER v. 12 No. CV-15-00288-TUC-JGZ Charles Ryan, et al., 13 Respondents. 14 15 Pending before the Court is a Report and Recommendation issued by United 16 States Magistrate D. Thomas Ferraro that recommends denying Petitioner’s Habeas 17 Petition filed pursuant to 28 U.S.C. §2254. (Doc. 18.) As thoroughly explained by 18 Magistrate Judge Ferraro, Petitioner’s petition is untimely and the claims in Petitioner’s 19 petition are procedurally defaulted and/or without merit. As Petitioner’s objections (Doc. 20 19) do not undermine the analysis and proper conclusion reached by Magistrate Judge 21 Ferraro, Petitioner’s objections are rejected and the Report and Recommendation is 22 adopted. 23 Before Petitioner can appeal this Court's judgment, a certificate of appealability 24 must issue. See Fed. R. App. P. 22(b)(1) (the applicant cannot take an appeal unless a 25 circuit justice or a circuit or district judge issues a certificate of appealability under 28 26 U.S.C. § 2253(c)). Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may 27 issue only if the applicant has made a substantial showing of the denial of a constitutional 28 right. In the certificate, the court must indicate which specific issues satisfy this showing. 1 See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an 2 issue of appeal is debatable among reasonable jurists, if courts could resolve the issues 3 differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 4 473, 484-85 (2000). Upon review of the record in light of the standards for granting a 5 certificate of appealability, the Court concludes that a certificate shall not issue as the 6 resolution of the petition is not debatable among reasonable jurists and does not deserve 7 further proceedings. 8 9 Accordingly, IT IS HEREBY ORDERED as follows: 1. The Report and Recommendation (Doc. 18) is accepted and adopted; 10 2. Petitioner’s §2254 Petition (Doc. 1) is denied; 11 3. A Certificate of Appealability is denied and shall not issue; and 12 4. This case is dismissed with prejudice. The Clerk of the Court shall enter judgment 13 accordingly and close the file in this matter. 14 Dated this 14th day of June, 2017. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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