Birdow v. Shinn ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jerome Ledarryl Birdow, No. CV-18-00492-TUC-SHR 10 Petitioner, ORDER 11 v. 12 Charles Ryan, et al., 13 Respondents. 14 15 Pending before the Court is a Report and Recommendation (Doc. 13) issued by 16 United States Magistrate Judge Jacqueline M. Rateau that recommends denying 17 Petitioner’s habeas petition filed pursuant to 28 U.S.C. §2254. A review of the record 18 reflects that the parties have not filed any objections to the Report and Recommendation 19 and the time to file objections has expired. As such, the Court will not consider any 20 objections or new evidence. 21 The Court has reviewed the record and concludes that Magistrate Judge Rateau’s 22 recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 23 636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th 24 Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 25 Before Petitioner can appeal this Court's judgment, a certificate of appealability 26 must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that 27 rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either 28 issue a certificate of appealability or state why a certificate should not issue. See id. Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the 2|| applicant has made a substantial showing of the denial of a constitutional right." In the □□ certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve the issues || differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 7\| 473, 484-85 (2000). Upon review of the record in light of the standards for granting a 8 || certificate of appealability, the Court concludes that a certificate shall not issue as the 9|| resolution of the petition is not debatable among reasonable jurists and does not deserve || further proceedings. 11 Accordingly, IT IS HEREBY ORDERED as follows: || (1) The Report and Recommendation (Doc. 13) is accepted and adopted. 13 || (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed. 14|| (3) A Certificate of Appealability is denied and shall not issue. □□ (4) In light of this ruling, Petitioner’s Motion for Stay of Proceedings (Doc. 15) is 16|| DENIED as MOOT. 17 || (5) The Clerk of the Court shall enter judgment and close the file in this case. 18 19 Dated this 8th day of June, 2021. 20 21 /} Aa: fol 73 Honorable Scott H, Rash United States District Judge 24 25 26 27 28 _2-