Opinion
No. CV-16-00745-TUC-JGZ
12-04-2018
Patricio E Martinez, Petitioner, v. Charles L Ryan, et al., Respondents.
ORDER
Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge D. Thomas Ferraro. (Doc 17.) Magistrate Judge Ferraro recommends denying and dismissing Petitioner's § 2254 Petition for Writ of Habeas Corpus because Grounds 1 and 2 are without merit and Grounds 3 and 4 are procedurally defaulted without excuse and barred from federal habeas review. (Id.)
A review of the record reflects that the parties have not filed any objections to the Report and Recommendation and the time to file objections has expired. As such, the Court will not consider any objections or new evidence.
Upon review of the record, the Court will adopt Magistrate Judge Ferraro's recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 149-54 (1985).
Before Petitioner can appeal this Court's judgment, a certificate of appealability (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the Rules Governing Section 2254 Cases. "The district court must issue or deny a certification of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." The court must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural rulings, a COA will issue only if reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and whether the court's procedural ruling was correct. Id. 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. Accordingly,
IT IS ORDERED that the Report and Recommendation (Doc. 17) is ADOPTED.
IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED and DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
The Clerk of Court shall enter judgment accordingly and close the file in this action.
Dated this 4th day of December, 2018.
/s/_________
Honorable Jennifer G. Zipps
United States District Judge