Wright v. Shinn ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Eric Wright, No. CV-18-04057-PHX-NVW (JFM) 9 Petitioner, 10 ORDER 11 v. and DENIAL OF CERTIFICATE OF Charles L. Ryan, et al., 12 APPEALABILITY 13 Respondents. 14 Pending before the Court is the Report and Recommendation (“R&R”) of 15 Magistrate Judge James F. Metcalf (Doc. 28) regarding Petitioner’s Petition for Writ of 16 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1), Respondents’ Motion to 17 Dismiss (Doc. 19) and Petitioner’s Motion to Stay (Doc. 21). The R&R recommends that 18 the Petitioner’s Motion to Stay be denied; Respondents’ Motion to Dismiss be granted and 19 the Petitioner’s Petition for Writ of Habeas Corpus be dismissed without prejudice. The 20 Magistrate Judge advised the parties that they had fourteen days to file objections to the 21 R&R. (R&R at 7 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 22 (en banc). Petitioner filed objections on November 18, 2019 (Doc. 29) and Respondents 23 filed a reply on December 2, 2019 (Doc. 30). 24 The Court has considered the objections and reply and reviewed the Report and 25 Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that 26 the court must make a de novo determination of those portions of the Report and 27 Recommendation to which specific objections are made). The Court agrees with the 28 Magistrate Judge’s determinations, accepts the recommended decision within the meaning 1 | of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 2 || 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, 3 | the findings or recommendations made by the magistrate”). 4 IT IS THEREFORE ORDERED that Report and Recommendation of the 5 | Magistrate Judge (Doc. 28) is accepted. 6 IT IS FURTHER ORDERED denying Petitioner’s Motion to Stay (Doc. 21). 7 IT IS FURTHER ORDERED granting Respondents’ Motion to Dismiss (Doc. 19). 8 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 9 | and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 10 |} § 2254 (Doc. 1) without prejudice. The Clerk shall terminate this action. 11 A certificate of appealability is denied because Petitioner has not shown that “jurists 12 || of reason would find it debatable whether the petition states a valid claim of the denial of 13 | aconstitutional right and that jurists of reason would find it debatable whether the district 14 || court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); 15 | see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012); Miller-El 16 | v. Cockrell, 537 U.S. 322, 327 (2003). 17 Dated this 3rd day of December, 2019. 18 MALL ale 20 Neil V. Wake Senior United States District Judge 22 23 24 25 26 27 5. 28