Opinion
No. CV 10-43-TUC-FRZ (JR)
09-04-2012
Rafael M. Cardenas, Petitioner, v. Charles Ryan, et al., Respondents.
ORDER
Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Rateau that recommends denying Petitioner's habeas petition filed pursuant to 28 U.S.C. §2254. 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.
Magistrate Judge Marshall recently changed her last name to Rateau.
The Court has reviewed the record and concludes that Magistrate Judge Rateau's recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998).
Before Petitioner can appeal this Court's judgment, a certificate of appealability must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate Procedure 22(b) requires the district court that rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why a certificate should not issue." 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. 20) 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 accordingly and close the file in this matter.
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Frank R. Zapata
Senior United States District Judge