Ellis v. Von Blanckensee

Opinion

1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA

4 Rene Ellis, Jr., No. CV-20-00139-TUC-JAS

5 Petitioner, ORDER

6 v.

7 Barbara Von Blanckensee,

8 Respondent. 9 10 Pending before the Court is a Report and Recommendation (Doc. 15) issued by 11 United States Magistrate Judge Markovich that recommends substituting Andrew Ciolli, 12 Warden, as Respondent for Barbara Von Blanckensee pursuant to Rule 25(d) of the Federal 13 Rules of Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure 14 and denying and dismissing Petitioner’s habeas petition filed pursuant to 28 U.S.C. §2254.1 15 A review of the record reflects that the parties have not filed any objections to the Report 16 and Recommendation and the time to file objections has expired. As such, the Court will 17 not consider any objections or new evidence. 18 The Court has reviewed the record and concludes that Magistrate Judge 19 Markovich’s recommendations are not clearly erroneous and they are adopted. See 28 20 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Johnson v. Zema Systems Corp., 170 F.3d 734, 739 21 (7th Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 22 Before Petitioner can appeal this Court's judgment, a certificate of appealability 23 must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that 24 rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either 25 issue a certificate of appealability or state why a certificate should not issue. See id. 26

27 1The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to 28 portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the applicant has made a 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 reasonable jurists, if courts could resolve the issues differently, or if the ° issue deserves 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, 8 the Court concludes that a certificate shall not issue as the resolution of the petition is not ° debatable among reasonable jurists and does not deserve further proceedings. 10 Accordingly, IT IS HEREBY ORDERED as follows: (1) The Report and Recommendation (Doc. 15) is accepted and adopted. 2 (2) Substituting Andrew Ciolli, Warden, as Respondent for Barbara Von Blanckensee 1S pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the i Federal Rules of Appellate Procedure. (3) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. (4) A Certificate of Appealability is denied and shall not issue. 7 (5) The Clerk of the Court shall enter judgment and close the file in this case. Dated this 18th day of August, 2022.

20 21 __\ <—— <. □ Ase. □ 92 Honorable James A. Soto 33 United States District Judge 24 25 26 27 28 -2-