Opinion
CV-23-00075-PHX-GMS-FJM
06-10-2024
Jorge C. Centeno-Sarabia, Petitioner, v. Attorney General of the State of Arizona, Ryan Thornell[1], Respondents.
ORDER
AND
DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS
G. MURRAY SNOW, CHIEF UNITED ST ATE S'DI STRICT JUDGE.
Pending before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge James F. Metcalf (Doc. 54) regarding petitioner's Motion to Amend his Petition for Writ of Habeas Corpus (Doc. 48). The R&R recommends that Petitioner's Motion to Amend be denied. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 9 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner filed objections on April 30, 2024 (Doc. 57) and Respondents filed a reply on May 15, 2024 (Doc. 58).
The Court has considered the objections and reply 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). In his objection, Mr. Centeno-
Sarabia objects to the R&R's conclusion that amendment to his habeas petition to add a new ground for relief (Ground Six) of “Actual Innocence” based on DNA evidence would be futile. The Court agrees with the Magistrate Judge's determinations in these respects, and further notes that Mr. Centeno-Sarabia's objections do not substantively address Judge Metcalf's recommendation refuting them, or his resulting conclusions about the application of law regarding the standard to amend, exhaustion or lack of merit. The Court thus 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 ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 54) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying Petitioner's Motion to Amend (Doc. 48) and denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the district court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. Should Petitioner seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.