King # 179391 v. Ryan et al, No. 2:2014cv01229 - Document 19 (D. Ariz. 2015)

Court Description: MEMORANDUM OF DECISION AND ORDER ADOPTING 17 Report and Recommendation of the Magistrate Judge. Petitioner's Petition for Writ of Habeas Corpus is DENIED. The Clerk shall enter judgment. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal was justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Senior Judge Stephen M McNamee on 12/14/15. (LSP)
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King # 179391 v. Ryan et al 1 Doc. 19 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 ) ) ) ) ) ) ) ) ) ) ) Frederick King, Jr., Petitioner, 10 11 v. 12 Charles L. Ryan, et al., 13 Respondents. 14 No. CV-14-1229-PHX-SMM (MHB) MEMORANDUM OF DECISION AND ORDER 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus pursuant 16 to 28 U.S.C. § 2254. (Doc. 5.) The matter was referred to Magistrate Judge Michelle H. 17 Burns for a Report and Recommendation. (Doc. 10.) Magistrate Judge Burns has filed a 18 Report and Recommendation with this Court. (Doc. 17.) Petitioner did not file an objection 19 to the Report and Recommendation. 20 STANDARD OF REVIEW 21 The Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan, 23 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service of a copy 24 of the Magistrate’s recommendation within which to file specific written objections to the 25 Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a Magistrate Judge’s 26 recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s 27 factual findings and waives all objections to those findings on appeal. See Turner v. Duncan, 28 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s conclusion “is Dockets.Justia.com 1 a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” 2 Id. DISCUSSION 3 4 Having reviewed the Report and Recommendation of the Magistrate Judge, and no 5 Objections having been made by any party, the Court hereby incorporates and adopts the 6 Magistrate Judge’s Report and Recommendation. 7 The standard for this Court to issue a Certificate of Appealability (“COA”) is whether 8 the applicant has “made a substantial showing of the denial of a constitutional right .” 28 9 U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Section 2254 Cases. “Where a 10 district court has rejected the constitutional claims on the merits, the showing required to 11 satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists 12 would find the district court’s assessment of the constitutional claims debatable or wrong.” 13 Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas 14 petition on procedural grounds without reaching the prisoner’s underlying constitutional 15 claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find 16 it debatable whether the petition states a valid claim of the denial of a constitutional right and 17 that jurists of reason would find it debatable whether the district court was correct in its 18 procedural ruling.” Id. 19 CONCLUSION 20 Accordingly, for the reasons set forth, 21 IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation 22 of the Magistrate Judge that Petitioner’s habeas petition was untimely filed under the 23 AEDPA’s one-year statute of limitations, see 28 U.S.C. § 2244(d), and that Petitioner is not 24 entitled to equitable tolling of the limitations period. (Doc. 17.) 25 IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus 26 is DENIED, terminating this case. The Clerk of the Court shall enter judgment accordingly. 27 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 28 proceed in forma pauperis on appeal are DENIED because the dismissal was justified by a -2- 1 2 plain procedural bar and jurists of reason would not find the procedural ruling debatable. DATED this 14th day of December, 2015. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-