Elem v. Ryan et al

Filing 32

ORDER Petitioner's Motion Requesting a Certificate of Appealability (Doc. 31 ) is DENIED. Magistrate Judge McDonald's Report and Recommendation (Doc. 26 ) is ADOPTED. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is DENIED. The Clerk of the Court shall enter judgment accordingly and close the file in this action. Signed by Judge Jennifer G Zipps on 4/9/2020. (See attached Order for complete details) (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melvin Elem,

No. CV-18-00087-TUC-JGZ
Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Magistrate Judge Bruce G. McDonald’s Report and

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Recommendation recommending that the District Court deny Petitioner’s § 2254 Petition

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for Writ of Habeas Corpus. The parties have not filed any objections to the Report and

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Recommendation and the time to file objections has expired.

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court

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“may accept, reject, or modify, in whole or in part, the findings or recommendations made

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by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the

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magistrate judge’s findings and recommendations de novo if objection is made, but not

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)

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(emphasis omitted). District courts are not required to conduct “any review at all . . . of

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any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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See also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Reyna-Tapia, 328 F.3d at 1121; Schmidt

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v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003).

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There being no objection to the Report and Recommendation, the Court will adopt

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Judge McDonald’s recommendation to deny Petitioner’s § 2254 Petition for Writ of

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Habeas Corpus. Before Petitioner can appeal this Court’s judgment, a certificate of

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appealability (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule

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11(a) of the Rules Governing Section 2254 Cases. “The district court must issue or deny

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a certification of appealability when it enters a final order adverse to the applicant.” Rule

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

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

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a 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.

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On February 19, 2020, prior to entry of this Court’s Order adopting the R&R,

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Petitioner filed Notice of an Interlocutory Appeal to the Ninth Circuit. Petitioner also

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subsequently filed a Motion Requesting a Certificate of Appealability. The Court will deny

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the motion for the reason stated above.

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Accordingly,

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IT IS ORDERED that:

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1. Petitioner’s Motion Requesting a Certificate of Appealability (Doc. 31) is DENIED.

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2. Magistrate Judge McDonald’s Report and Recommendation (Doc. 26) is

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

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The Clerk of the Court shall enter judgment accordingly and close the file in this
action.
Dated this 9th day of April, 2020.

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