Bodney #130538 v. Shinn et al

Filing 26

ORDER ADOPTING 25 REPORT AND RECOMMENDATION. IT IS ORDERED the 1 Petition Under 18 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody is DISMISSED. A Certificate of Appealability shall not issue in this case. The Clerk of the Court shall enter judgment accordingly and close this case. Signed by Senior Judge Cindy K Jorgenson on 1/11/22.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Lamonte Bodney,
Petitioner,

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v.

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No. CV-20-00373-TUC-CKJ
ORDER ADOPTING REPORT AND
RECOMMENDATION

David Shinn, et al.,

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Respondents.

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On September 14, 2021, Magistrate Judge Leslie A. Bowman issued a Report and

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Recommendation (“R&R”) (Doc. 25) in which she recommended that the Court deny

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William Lamonte Bodney’s Petition Under 18 U.S.C. § 2254 for Writ of Habeas Corpus

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by a Person in State Custody (Doc. 1). The Magistrate Judge advised the parties that

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written objections to the recommendation were to be filed within fourteen days of service

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of a copy of the R&R under 28 U.S.C. § 636(b). Id. at 15. As of the date of this Order, no

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objections have been filed.

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LEGAL STANDARD

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The Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party makes a

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timely objection to a magistrate judge's recommendation, then the Court is required to

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“make a de novo determination of those portions of the [report and recommendation] to

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which objection is made.” Id. § 636(b)(1). The statute does not “require[ ] some lesser

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review by the [Court] when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 150

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(1985). Rather, the Court is not required to conduct “any review at all . . . of any issue that

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is not the subject of an objection.” Id. at 149.

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The United States Court of Appeals for the Ninth Circuit has reiterated that a district

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court is not required to review a magistrate judge's report and recommendation where no

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objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (“[T]o the extent de novo review is required to satisfy Article III concerns, it

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need not be exercised unless requested by the parties”). In other words, if there is no

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objection to a magistrate judge's recommendation, then this Court may accept the

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recommendation without review.

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Petitioner has failed to file an objection to the Magistrate Judge’s R&R. While

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Petitioner has not filed an objection, the Court has independently reviewed the R&R and

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adopts the recommended findings and conclusions. The Court will accept the R&R and

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dismiss the Petition.

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CERTIFICATE OF APPEALABILITY (“COA”)

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Before Petitioner can appeal the Court’s judgment, a certificate of

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appealability (COA) must issue. 28 U.S.C. § 2253(c)(1); 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 a

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

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28 U.S.C. § 2253(c)(2), a COA may issue only if the petitioner “has made a substantial

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showing of the denial of a constitutional right.” The certificate must indicate which

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specific issue or issues satisfy this showing. 28 U.S.C. § 2253(c)(3). With respect to

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claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would

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find the district court’s assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484 (2000). For procedural rulings, a COA will issue only if

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reasonable jurists could debate whether the petition states a valid claim of the denial of a

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constitutional right and the district court was correct in its procedural ruling. Id.

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Upon review of the record, and in light of the aforementioned standards, the Court

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concludes that a certificate shall not issue, as the resolution of the petition on its merits is

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not debatable among reasonable jurists. Any future request for a COA must be addressed

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to the United States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 22(b).

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IT IS ORDERED:

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1. The Report and Recommendation (Doc. 25) is ADOPTED.

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2. The Petition Under 18 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in

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State Custody (Doc. 1) is DISMISSED.

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3. A Certificate of Appealability shall not issue in this case.

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4. The Clerk of the Court shall enter judgment accordingly and close this case.

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Dated this 11th day of January, 2022.

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