Opinion
No. CV-18-00534-TUC-JGZ
08-12-2019
Ernie Lee Weaver. Jr., Petitioner, v. State of Arizona, et. al., Respondents.
ORDER
Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge D. Thomas Ferraro that recommends denying Petitioner's Third Amended Habeas Petition filed pursuant to 28 U.S.C. § 2254. (Doc. 51) During the time objections to the Report and Recommendation were due, Petitioner filed two documents. (Docs. 52, 53.) What the Court can decipher from these two filings is that Petitioner requests granting of his habeas corpus petition and refers vaguely to constitutional violations. Viewing Petitioner's pro se filings liberally, the Court will construe Docs. 52 and 53 as a combined objection to the Report and Recommendation.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "[T]he district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985). See also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.
DISCUSSION
The factual and procedural history of this case is set forth in the Magistrate Judge's Report and Recommendation. (Doc. 51.) --------
It is not clear which specific aspects of the Report and Recommendation Petitioner challenges. As thoroughly explained by Magistrate Judge Ferraro, Petitioner is not entitled to relief because several of Petitioner's claims are not cognizable on federal habeas review, other claims are waived by virtue of his guilty plea, and all claims (including those that are non-cognizable or waived) are procedurally defaulted without excuse. Because Petitioner's objection does not undermine the analysis and proper conclusion reached by Magistrate Judge Ferraro, the Court will reject Petitioner's objection and adopt the Report and Recommendation.
Before Petitioner can appeal this Court's judgment, a certificate of appealability (COA) must issue. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the Rules Governing Section 2254 Cases. "The district court must issue or deny a certification of appealability when it enters a final order adverse to the applicant." Rule 11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." The court must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). With respect to claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). For procedural rulings, a COA will issue only if reasonable jurists could debate whether the petition states a valid claim of the denial of a constitutional right and whether the court's procedural ruling was correct. Id. 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.
IT IS HEREBY ORDERED as follows:
1. The Report and Recommendation (Doc. 51) is accepted and adopted.
2. Petitioner's Objection to the Report and Recommendation (Docs. 52, 53) is overruled.
3. Petitioner's Third Amended § 2254 Petition (Doc. 15) is denied and this case is dismissed with prejudice.
4. A Certificate of Appealability is denied.
5. The Clerk of the Court shall enter judgment accordingly and close the file in this matter.
Dated this 12th day of August, 2019.
/s/_________
Honorable Jennifer G. Zipps
United States District Judge