261379 Lizardi v. Shinn

Opinion

1 2 3 4 5

9 Victor Lizardi, No. CV-18-00373-TUC-JAS

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 Pending before the Court is a Report and Recommendation issued by United 16 States Magistrate Judge Maria S. Aguilera that recommends denying Petitioner’s habeas 17 petition filed pursuant to 28 U.S.C. § 2254.1 As Petitioner’s objections do not undermine 18 the analysis and proper conclusion reached by Magistrate Judge Aguilera, Petitioner’s 19 objections are rejected, and the Report and Recommendation is adopted. 20 The Court has reviewed the record and concludes that Magistrate Judge Aguilera’s 21 recommendations are not clearly erroneous, and they are adopted. See 28 U.S.C. 22 § 636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th 23 Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 24 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 25 must issue. See 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of 26 1 The Court reviews de novo the objected-to portions of the Report and Recommendation. 27 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems 28 Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). Appellate Procedure 22(b) requires the district court that rendered a judgment denying the petition made pursuant to 28 U.S.C. § 2254 to “either issue a certificate of appealability or state why a certificate should not issue.” Additionally, 28 U.S.C. § 2253(c)(2) provides that a certificate may issue “only if the applicant has made a 5 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 8 reasonable jurists, if courts could resolve the issues differently, or if the issue deserves 9 further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for granting a certificate of appealability, the Court 11 concludes that a certificate shall not issue as the resolution of the petition is not debatable 12 among reasonable jurists and does not deserve further proceedings. 13 Accordingly, IT IS HEREBY ORDERED as follows: (1) ~The Report and Recommendation (Doc. 20) is accepted and adopted. 15 (2) Petitioner’s § 2254 habeas petition is denied, and this case is dismissed with 16 prejudice. 17 (3) — A Certificate of Appealability is denied and shall not be issued. (4) | The Clerk of the Court shall enter judgment and close the file in this case. 19 Dated this 21st day of January, 2020. 20 ark, Honorable James A. Soto 23 United States District Judge 24 25 26 27 28

_2-