Zepeda v. Ryan et al

Filing 23

ORDER adopting Report and Recommendations re 17 Report and Recommendation. Petitioner's §2254 habeas petition is denied and this case is dismissed with prejudice. A Certificate of Appealability is denied and shall not issue. The Clerk of the Court shall enter judgment and close the file in this case. Signed by Judge James A Soto on 7/16/2018. (See attached Order for details) (KEP)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Gerardo Roberto Zepeda,
Petitioner,

9
10

vs.

11
Charles L. Ryan, et al.
12
Respondents.
13

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

No. CV 16-226-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. §2254.1 As Petitioner’s objections do not undermine the analysis and

18

proper conclusion reached by Magistrate Judge Velasco, Petitioner’s objections are rejected

19

and the Report and Recommendation is adopted.

20

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

21

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

22

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

23

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

24
25
26
27
28

1

The Court reviews de novo the objected-to portions of the Report and Recommendation.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to
portions of the Report and Recommendation. 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).

1

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

2

issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that rendered

3

a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either issue a

4

certificate of appealability or state why a certificate should not issue. See id. Additionally,

5

28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the applicant has made

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

reasonable jurists and does not deserve further proceedings.

14

Accordingly, IT IS HEREBY ORDERED as follows:

15

(1) The Report and Recommendation (Doc. 17) is accepted and adopted.

16

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

17

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

18

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

19

DATED this 16th day of July, 2018.

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