Juarez-Orci v. Ryan et al

Filing 13

ORDERED The Report and Recommendation (Doc. 12 ) 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 9/8/20. (MYE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Raul Juarez-Orci,

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Petitioner,

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ORDER

v.

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No. CV-18-00071-TUC-JAS

Charles L Ryan, et al.,

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Respondents.

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

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Magistrate Judge Markovich that recommends denying Petitioner’s habeas petition filed

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pursuant to 28 U.S.C. §2254.1 A review of the record reflects that the parties have not filed

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any objections to the Report and Recommendation and the time to file objections has

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expired. As such, the Court will not consider any objections or new evidence.

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The Court has reviewed the record and concludes that Magistrate Judge

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Markovich’s recommendations are not clearly erroneous and they are adopted. See 28

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U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739

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(7th Cir. 1999); Conley 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). The district court that

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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).

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rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either
issue a certificate of appealability or state why a certificate should not issue. See id.
Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” In the
certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C.
§2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is
debatable among reasonable jurists, if courts could resolve the issues differently, or if the
issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Upon review of the record in light of the standards for granting a certificate of appealability,
the Court concludes that a certificate shall not issue as the resolution of the petition is not
debatable among reasonable jurists and does not deserve further proceedings.
Accordingly, IT IS HEREBY ORDERED as follows:
(1) The Report and Recommendation (Doc. 12) is accepted and adopted.
(2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice.
(3) A Certificate of Appealability is denied and shall not issue.
(4) The Clerk of the Court shall enter judgment and close the file in this case.
Dated this 8th day of September, 2020.

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