Magallanes v. Ryan et al

Filing 17

ORDER that the Report and Recommendation (Doc. 15 ) is accepted and adopted, and the motion for additional time (Doc. 16 ) is denied. It is further Ordered Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice. It is further Ordered a Certificate of Appealability is denied and shall not issue. It is further Ordered the Clerk of the Court shall enter judgment and close the file in this case. Signed by Judge James A Soto on 9/19/2017. (MFR)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Jacob Magallanes,
Petitioner,

9
10

vs.

11
Charles Ryan, et al.
12
Respondents.
13

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 15-312-TUC-JAS (BPV)
ORDER

14
15

Pending before the Court is a Report and Recommendation issued by United States

16

Magistrate Judge Velasco that recommends denying Petitioner’s habeas petition filed

17

pursuant to 28 U.S.C. §2254. The Report and Recommendation was filed on August 9, 2017.

18

As of the date of this Order, the parties have not filed any objections to the Report and

19

Recommendation and the time to file objections has expired. To the extent Petitioner filed

20

a motion for additional time to file objections based on his representation that he is awaiting

21

other prisoners help in doing legal work for him in this case, such motion (Doc. 16) is denied.

22

The Court has reviewed the record and concludes that Magistrate Judge Velasco’s

23

recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 636(b)(1);

24

Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999);

25

Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).

26

Before Petitioner can appeal this Court's judgment, a certificate of appealability must

27

issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate

28

Procedure 22(b) requires the district court that rendered a judgment denying the petition

1

made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why

2

a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate

3

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

4

constitutional right." In the certificate, the court must indicate which specific issues satisfy

5

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

6

resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve

7

the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel,

8

529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for

9

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

10

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

11

deserve further proceedings.

12

Accordingly, IT IS HEREBY ORDERED as follows:

13

(1) The Report and Recommendation (Doc. 15) is accepted and adopted, and the motion for

14

additional time (Doc. 16) is denied.

15

(2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice.

16

(3) A Certificate of Appealability is denied and shall not issue.

17

(4) The Clerk of the Court shall enter judgment and close the file in this case.

18

DATED this 19th day of September, 2017.

19
20
21
22
23
24
25
26
27
28
-2-