Caballero v. Ryan et al

Filing 23

ORDER ADOPTING 22 Magistrate Judge Macdonald's Report and Recommendation. Petitioner Victor M Caballero's Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED. The Clerk of Court shall enter judgment accordingly and close the file in t his action. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of theRules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court concludes that a certificate shall not issue, as the resolution of the petition is not debatable among reasonable jurists. Signed by Judge Jennifer G Zipps on 7/2/2019. (MCO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor M Caballero,
Petitioner,

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No. CV-16-00529-TUC-JGZ
ORDER

v.
Charles L Ryan, et al.,
Respondents.
Pending before the Court is Magistrate Judge Bruce Macdonald’s Report and
Recommendation (R&R) recommending that this Court deny Petitioner’s 28 U.S.C. § 2254
Petition for a Writ of Habeas Corpus. (Doc. 22.) No objection to the R&R has been filed.
Fed. R. Civ. P. 72 (b)(2) (granting a party 14 days to serve and file specific written
objections to an R&R).
When reviewing a Magistrate Judge's Report and Recommendation, this Court
“shall make a de novo determination of those portions of the report . . . to which objection
is made,” and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also
Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified
Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's
recommendation relieves the Court of conducting de novo review of the Magistrate Judge's
factual findings; the Court then may decide the dispositive motion on the applicable law.
Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States
Dist. Ct., 501 F.2d 196 (9th Cir. 1974)). Having reviewed the record in this case, the Court

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will adopt Magistrate Judge Macdonald’s recommendation. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 149–54 (1985).

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Petitioner must obtain a certificate of appealability (COA) before he may appeal this

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Court’s judgment. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the

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Rules Governing Section 2254 Cases. “The district court must issue or deny a certification

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of appealability when it enters a final order adverse to the applicant.” Rule 11(a) of the

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Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may

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issue only when the petitioner “has made a substantial showing of the denial of a

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constitutional right.” The court must indicate which specific issues satisfy this showing.

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See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner “must

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demonstrate that reasonable jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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For procedural rulings, a COA will issue only if reasonable jurists could debate whether

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the petition states a valid claim of the denial of a constitutional right and whether the court’s

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procedural ruling was correct. Id. Upon review of the record in light of the standards for

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

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as the resolution of the petition is not debatable among reasonable jurists. Accordingly,

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IT IS ORDERED that:

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1.

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Magistrate Judge Macdonald’s Report and Recommendation (Doc. 22) is

ADOPTED;

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2.

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

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3.

The Clerk of Court shall enter judgment accordingly and close the file in this

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action.
Dated this 2nd day of July, 2019.

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