Flemons v. Ryan et al

Filing 23

ORDER Magistrate Judge Velasco's Report and Recommendation (Doc. 22 ) 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 11/17/2017. (See attached Order for details) (KEP)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jesse Dwayne Flemons, 10 Petitioner, 11 ORDER v. 12 No. CV-15-00586-TUC-JGZ Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court is a Report and Recommendation issued by United 16 States Magistrate Judge Bernardo P. Velasco that recommends denying Petitioner’s 17 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 22.) 18 A review of the record reflects that the parties have not filed any objections to the 19 Report and Recommendation and the time to file objections has expired. As such, the 20 Court will not consider any objections or new evidence. 21 The Court has reviewed the record and concludes that Magistrate Judge Velasco’s 22 recommendations are not clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 23 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley 24 v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). 25 Before Petitioner can appeal this Court's judgment, a certificate of appealability 26 must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of 27 Appellate Procedure 22(b) requires the district court that rendered a judgment denying 28 the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of 1 appealability or state why a certificate should not issue." 2 §2253(c)(2) provides that a certificate may issue "only if the applicant has made a 3 substantial showing of the denial of a constitutional right." In the certificate, the court 4 must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A 5 substantial showing is made when the resolution of an issue of appeal is debatable among 6 reasonable jurists, if courts could resolve the issues differently, or if the issue deserves 7 further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review 8 of the record in light of the standards for granting a certificate of appealability, the Court 9 concludes that a certificate shall not issue as the resolution of the petition is not debatable Additionally, 28 U.S.C. 10 among reasonable jurists and does not deserve further proceedings. 11 Accordingly, IT IS HEREBY ORDERED as follows: 12 1. 13 and adopted; 14 2. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DENIED; 15 3. This case is dismissed with prejudice. The Clerk of the Court shall enter judgment 16 accordingly. 17 Magistrate Judge Velasco’s Report and Recommendation (Doc. 22) is accepted Dated this 17th day of November, 2017. 18 19 20 21 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?