Hayes v. Ryan et al

Filing 10

ORDER the Report and Recommendation (Doc. 9 ) is accepted and adopted. 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 12/21/2017. (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 Williams Hayes, Jr., Petitioner, 9 10 vs. 11 Charles Ryan, et. al., 12 Respondents. 13 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 16-00337-TUC-JAS (DTF) ORDER 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge D. Thomas Ferraro that recommends denying Petitioner’s habeas petition 17 filed pursuant to 28 U.S.C. §2254. A review of the record reflects that the parties have not 18 filed any objections to the Report and Recommendation and the time to file objections has 19 expired. As such, the Court will not consider any objections or new evidence. 20 The Court has reviewed the record and concludes that Magistrate Judge Ferraro’s 21 recommendations are not clearly erroneous. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; 22 Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Conley v. Crabtree, 14 23 F. Supp. 2d 1203, 1204 (D. Or. 1998). 24 Before Petitioner can appeal this Court's judgment, a certificate of appealability must 25 issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate 26 Procedure 22(b) requires the district court that rendered a judgment denying the petition 27 made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why 28 a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate 1 may issue "only if the applicant has made a substantial showing of the denial of a 2 constitutional right." In the certificate, the court must indicate which specific issues satisfy 3 this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the 4 resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve 5 the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 6 529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for 7 granting a certificate of appealability, the Court concludes that a certificate shall not issue 8 as the resolution of the petition is not debatable among reasonable jurists and does not 9 deserve further proceedings. 10 Accordingly, IT IS HEREBY ORDERED as follows: 11 (1) The Report and Recommendation (Doc. 9) is accepted and adopted. 12 (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 13 (3) A Certificate of Appealability is denied and shall not issue. 14 (4) The Clerk of the Court shall enter judgment and close the file in this case. 15 DATED this 21st day of December, 2017. 16 17 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?