Horton v. Shinn

Full title: Tony Lee Horton, Petitioner, v. David Shinn, et al., Respondents.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Dec 12, 2019

No. CV-19-00926-PHX-NVW (ESW) (D. Ariz. Dec. 12, 2019)

Opinion

No. CV-19-00926-PHX-NVW (ESW)

12-12-2019

Tony Lee Horton, Petitioner, v. David Shinn, et al., Respondents.

Neil V. Wake Senior United States District Judge

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 Eileen S. Willett (Doc. 17) regarding petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that that the Court dismiss Grounds One, Two, Three, 4(c), and 4(d) as procedurally defaulted and deny Grounds 4(a) and 4(b) on the merits. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 23 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9_th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Petitioner filed objections on December 9, 2019, (Doc. 18).

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). 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. 17) is accepted.

IT IS FURTHER ORDERED denying Petitioner's request for an evidentiary hearing.

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing with prejudice Grounds One, Two, Three, 4(c), and 4(d) of the Petition (Doc. 1) and deny Grounds 4(a) and 4(b) on the merits. The Clerk shall terminate this action.

A certificate of appealability is denied because dismissal of a number of grounds in the Petition (Doc. 1) is justified by a plain procedural bar and Petitioner has not made a substantial showing of the denial of a constitutional right in his remaining claims for relief.

Dated this 12th day of December, 2019.

/s/_________

Neil V. Wake

Senior United States District Judge