Peyron #231438 v. Moody et al

Filing 22

ORDER adopting Report and Recommendations re 21 Magistrate Judge Rateau's Report and Recommendation. Petitioner's 1 Petition for Writ of Habeas Corpus is DENIED. This case is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly. Signed by Judge Jennifer G Zipps on 3/7/2017. (See attached Order for details) (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carlos Yanez Peyron,
Petitioner,

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ORDER

v.

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No. CV-15-00414-TUC-JGZ

Chris Moody, et al.,

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Respondents.

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

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States Magistrate Judge Jacqueline Rateau that recommends denying Petitioner’s Petition

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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 21.)

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A review of the record reflects that the parties have not filed any objections to the

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Report and Recommendation and the time to file objections has expired. As such, the

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Court will not consider any objections or new evidence.

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

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recommendations are not clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

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72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley

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

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

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

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

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the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of

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appealability or state why a certificate should not issue."

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§2253(c)(2) provides that a certificate may issue "only if the applicant has made a

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substantial showing of the denial of a constitutional right." In the certificate, the court

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must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A

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substantial showing is made when the resolution of an issue of appeal is debatable among

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reasonable jurists, if courts could resolve the issues differently, or if the issue deserves

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further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review

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of the record in light of the standards for granting a certificate of appealability, the Court

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concludes that a certificate shall not issue as the resolution of the petition is not debatable

Additionally, 28 U.S.C.

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among reasonable jurists and does not deserve further proceedings.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1.

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adopted;

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2.

Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DENIED;

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3.

This case is dismissed with prejudice. The Clerk of the Court shall enter judgment

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accordingly.

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Magistrate Judge Rateau’s Report and Recommendation (Doc. 21) is accepted and

Dated this 7th day of March, 2017.

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Honorable Jennifer G. Zipps
United States District Judge

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