Opinion
No. CV-18-04057-PHX-NVW (JFM)
12-03-2019
Eric Wright, Petitioner, v. Charles L. Ryan, et al., Respondents.
ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge James F. Metcalf (Doc. 28) regarding Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1), Respondents' Motion to Dismiss (Doc. 19) and Petitioner's Motion to Stay (Doc. 21). The R&R recommends that the Petitioner's Motion to Stay be denied; Respondents' Motion to Dismiss be granted and the Petitioner's Petition for Writ of Habeas Corpus be dismissed without prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 7 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Petitioner filed objections on November 18, 2019 (Doc. 29) and Respondents filed a reply on December 2, 2019 (Doc. 30).
The Court has considered the objections and reply and reviewed the Report and Recommendation de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those portions of the Report and Recommendation to which specific objections are made). The Court agrees with the Magistrate Judge's determinations, accepts the recommended decision within the meaning of Rule 72(b), Fed. R. Civ. P., and overrules Petitioner's objections. See 28 U.S.C. § 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").
IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 28) is accepted.
IT IS FURTHER ORDERED denying Petitioner's Motion to Stay (Doc. 21).
IT IS FURTHER ORDERED granting Respondents' Motion to Dismiss (Doc. 19).
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) without prejudice. The Clerk shall terminate this action.
A certificate of appealability is denied because Petitioner has not shown that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Dated this 3rd day of December, 2019.
/s/_________
Neil V. Wake
Senior United States District Judge