Mente v. Attorney General of the State of Arizona ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Neil Ryan Mente, No. CV-18-03019-PHX-JGZ 10 Petitioner, ORDER 11 v. 12 Attorney General of the State of Arizona, et al., 13 Respondents. 14 15 Before the Court is Magistrate Judge Ferraro’s Report and Recommendation (R&R) 16 recommending that the District Court dismiss Petitioner’s Petition for Writ of Habeas 17 Corpus. Petitioner was mailed a copy of the R&R on August 21, 2019, and has not filed 18 an objection. 19 When reviewing a Magistrate Judge's Report and Recommendation, this Court 20 “shall make a de novo determination of those portions of the report . . . to which objection 21 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also 23 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified 24 Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's 25 recommendation relieves the Court of conducting de novo review of the Magistrate Judge's 26 factual findings; the Court then may decide the dispositive motion on the applicable law. 27 Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States 28 Dist. Ct., 501 F.2d 196 (9th Cir. 1974)). Having reviewed the record in this case, the Court will adopt Magistrate Judge Ferraro’s recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Thomas v. Arn, 474 U.S. 140, 149-54 (1985). 3 Petitioner must obtain a certificate of appealability (COA) before he may appeal this Court’s judgment. See 28 U.S.C. §2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a) of the 5 || 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 7|| Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 8 || issue only when the petitioner “has made a substantial showing of the denial of a 9|| 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 11 || demonstrate that reasonable jurists would find the district court’s assessment of the 12 || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13} 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 15 || 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. Accordingly, 18 IT IS ORDERED that Judge Ferraro’s R&R (Doc. 24) is ADOPTED. 19 IT IS FURTHER ORDERED that Petitioner’s Amended Petition for Writ of Habeas 20 || Corpus (Doc. 9) is DENIED. The Clerk of the Court is direct to enter judgment and close the file in this action. 22 Dated this 13th day of September, 2019. 23 24 25 Pot, Spee Honorable Jennifer’(¥ 7fpps United States District Judge 27 28 _2-