Ontiveros-Ponce v. United States

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jorge Luis Ontiveros-Ponce, No. CV-18-03910-PHX-JJT (BSB) 10 Petitioner, (CR-17-00081-PHX-JJT) v. ORDER USA, 13 Respondent.

15 At issue is the Report and Recommendation (Doc. 6) (“R&R”) entered by United States Magistrate Judge John Z. Boyle in this matter recommending the Court dismiss Jorge Luis Ontiveros-Ponce’s Petition or Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 2255 (Doc. 1). Petitioner was warned in the R&R that he had 14 days from its entry on June 10, 2019, in which to file any objections thereto. (Doc. 6 at 7-8.)

20 That deadline passed on June 24, 2019, more than a month ago, and Petitioner has filed no objections. The Court may therefore accept the R&R without further review. United States v. Tapia-Reyna, 328 F.3d 1114, 1121 (9th Cir. 2003). And it does so. 23 The Court nonetheless also has conducted a substantive review of the Petition and the supporting filings, and thereafter concludes that Judge Boyle’s R&R, and all of its reasoning, is correct.

26 As Judge Boyle found, Ground One of the Petition fails because Petitioner does not show either deficient performance of trial counsel nor prejudice from that performance.

28 Ground Two is defaulted as he never raised it before the Ninth Circuit Court of Appeals; || notwithstanding the default, the claim fails on its merits as well, as no double jeopardy || violation occurred here.

3 IT IS ORDERED adopting in whole Judge Boyle’s R&R (Doc. 6) and dismissing 4}| and denying with prejudice the Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 2255 (Doc. 1).

6 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 7\| proceed in forma pauperis. Dismissal of the Petition is justified by a plain procedural bar, || reasonable jurists would not find the ruling here debatable. Additionally, Petitioner has 9|| failed to show denial of a Constitutional right.

10 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment || accordingly and close this matter.

12 Dated this 5th day of August, 2019. ON United State#District Judge _2-