Opinion
No. CV-16-00471-PHX-NVW (JFM)
11-29-2016
Edward Lamar Carpenter, Petitioner, v. Charles L. Ryan; et al., Respondents.
ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge James F. Metcalf (Doc. 21) regarding petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10). The R&R recommends that that the following portions of Petitioner's Amended Petition for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be denied: (1) the portion of Ground 1(a)(1) based upon counsel's failure to call witnesses; (2) the portion of Ground 1(a)(2) based upon counsel's failure to call a banking expert; and (3) Ground 1(a)(3) (ineffectiveness re documents) and that the remainder of Petitioner's Amended Petition for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be dismissed with prejudice.
The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 32 (citing see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc)). Petitioner filed objections on November 7, 2016 (Doc. 22).
The Court has considered the objections and reviewed the Report and Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those portions of the Report and Recommendation to which specific objections are made). The Court agrees with the Magistrate Judge's determinations, accepts the recommended decision within the meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner's objections. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate").
IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc.21) is accepted.
A request for a certificate of appealability is denied because Petitioner has not shown that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
IT IS FURTHER ORDERED that that the following portions of Petitioner's Amended Petition for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be DENIED: (1) the portion of Ground 1(a)(1) based upon counsel's failure to call witnesses; (2) the portion of Ground 1(a)(2) based upon counsel's failure to call a banking expert; and (3) Ground 1(a)(3) (ineffectiveness re documents).
IT IS FURTHER ORDERED that the remainder of Petitioner's Amended Petition for Writ of Habeas Corpus, filed April 11, 2016 (Doc. 10) be dismissed with prejudice and the Clerk of the Court enter judgment denying and dismissing Petitioner's / / / / / / Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10) with prejudice. The Clerk shall terminate this action.
Dated this 29th day of November, 2016.
/s/_________
Neil V. Wake
Senior United States District Judge