Opinion
CV-21-00725-PHX-JJT (DMF)
02-15-2022
Alvin Rex Smith, Petitioner, v. State of Arizona, et al., Respondent.
ORDER
Honorable John J. Tuchi United States District Judge
At issue is the Report and Recommendation (Doc. 15) (“R&R”) submitted in this matter by United States Magistrate Judge Deborah M. Fine, recommending the Court dismiss with prejudice the Amended Petition for Habeas Corpus (Doc. 6). In the R&R, Judge Fine warned Petitioner he had 14 days from the date of its service to file any objections thereto, and failure to timely file any objections “may result in acceptance of the Report and Recommendation by the District Court without further review, ” per United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), as well as a waiver of his right to appellate review of any findings of fact and conclusions of law the Court makes in this Order in adopting the R&R per Fed.R.Civ.P. 72. (Doc. 11 at 12.)
It has been over four weeks since entry of the R&R and Petitioner filed no objections; he has therefore waived the above rights. Even if the Court reviewed the R&R on its merits, however, it would conclude that Judge Fine's recommendations and findings are all legally sound and supported by the record.
. . . .
Upon a review of the underlying state court record and the briefing of the parties in this matter, the Court agrees that all of Petitioner's claims are procedurally defaulted; he presented none of them to the state appellate court, and he could not now return to that court to exhaust them as he is time barred from doing so. Moreover, Petitioner shows no cause or prejudice to justify excuse of the failure, and cannot show qualifications for the miscarriage gateway as recognized in Schlup v. Delo, 513 U.S. 298, 321 (1995).
IT IS ORDERED adopting the Report and Recommendation (Doc. 15) including its underlying reasoning.
IT IS FURTHER ORDERED denying the Amended Petition for Habeas Corpus (Doc. 6).
IT IS FURTHER Ordered denying a Certificate of Appealability, upon a finding that Petitioner's default constitutes a plain procedural bar, and reasonable jurists could not conclude that Petitioner should be allowed to proceed further. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter.