Horton v. Shinn ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Tony Lee Horton, No. CV-19-00926-PHX-NVW (ESW) 9 Petitioner, 10 ORDER 11 v. and DENIAL OF CERTIFICATE OF David Shinn, et al., 12 APPEALABILITY AND IN FORMA 13 Respondents. PAUPERIS STATUS 14 Pending before the Court is the Report and Recommendation (“R&R”) of 15 Magistrate Judge Eileen S. Willett (Doc. 17) regarding petitioner’s Petition for Writ of 16 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that 17 that the Court dismiss Grounds One, Two, Three, 4(c), and 4(d) as procedurally defaulted 18 and deny Grounds 4(a) and 4(b) on the merits. The Magistrate Judge advised the parties 19 that they had fourteen days to file objections to the R&R. (R&R at 23 (citing United States 20 v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 21 1146-47 (9th Cir. 2007). Petitioner filed objections on December 9, 2019, (Doc. 18). 22 The Court has considered the objections and reply and reviewed the Report and 23 Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that 24 the court must make a de novo determination of those portions of the Report and 25 Recommendation to which specific objections are made). The Court agrees with the 26 Magistrate Judge’s determinations, accepts the recommended decision within the meaning 27 of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 28 1 | 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, || the findings or recommendations made by the magistrate’). 3 IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 17) is accepted. 5 IT IS FURTHER ORDERED denying Petitioner’s request for an evidentiary 6 || hearing. 7 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing 8 || with prejudice Grounds One, Two, Three, 4(c), and 4(d) of the Petition (Doc. 1) and deny 9 | Grounds 4(a) and 4(b) on the merits. The Clerk shall terminate this action. 10 A certificate of appealability is denied because dismissal of a number of grounds in 11] the Petition (Doc. 1) is justified by a plain procedural bar and Petitioner has not made a 12 || substantial showing of the denial of a constitutional right in his remaining claims for relief. 13 Dated this 12th day of December, 2019. 14 15 M2 GALL J 16 Neil V. Wake 7 Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 5. 28