Pfeiff v. Shinn ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Richard Kenneth Pfeiff, ) No. CV 18-450-TUC-JAS (JR) ) 9 Petitioner, ) ORDER ) 10 vs. ) ) 11 ) David Shinn, et al. ) 12 ) Respondent. ) 13 ) ) 14 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Rateau that recommends denying Petitioner’s habeas petition filed pursuant 17 to 28 U.S.C. §2254. A review of the record reflects that the parties have not filed any 18 objections to the Report and Recommendation. The Court notes that Petitioner filed a 19 “motion to withdraw” stating “I wish to no longer proceed at this moment [in this case]” 20 (Doc. 22) after the issuance of Judge Rateau’s Report and Recommendation recommending 21 dismissal of this case; the “motion to withdraw” (Doc. 22) is denied. The Court will not 22 consider any objections or new evidence. 23 The Court has reviewed the record and concludes that Magistrate Judge Rateau’s 24 recommendations are not clearly erroneous and they are adopted. See 28 U.S.C. § 636(b)(1); 25 Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); 26 Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 27 Before Petitioner can appeal this Court's judgment, a certificate of appealability must 28 issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that rendered 1 |] a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either issue a 2 || certificate of appealability or state why a certificate should not issue. See id. Additionally, 3 || 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the applicant has made 4 || asubstantial showing of the denial of a constitutional right." In the certificate, the court must 5 |] indicate which specific issues satisfy this showing. See 28 U.S.C. §2253(c)(3). A substantial 6 || showing is made when the resolution of an issue of appeal is debatable among reasonable 7 || jurists, if courts could resolve the issues differently, or if the issue deserves further 8 |] proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review of the 9 || record in light of the standards for granting a certificate of appealability, the Court concludes 10 || that a certificate shall not issue as the resolution of the petition is not debatable among 11 || reasonable jurists and does not deserve further proceedings. 12 Accordingly, IT IS HEREBY ORDERED as follows: 13 || (1) The Report and Recommendation (Doc. 19) is accepted and adopted, and the “motion to 14 |] withdraw” (Doc. 22) 1s denied. 15 | (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 16 || (3) A Certificate of Appealability is denied and shall not issue. 17 | (4) The Clerk of the Court shall enter judgment and close the file in this case. 18 19 Dated this 24th day of June, 2021. 20 21 enh. | 4 Honorable James AA. Soto United States District Judge 25 26 27 28 -2-