McLaughlin v. Shinn

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

9 Justin D McLaughlin, NO. CV-19-00404-PHX-MTL 10 Petitioner, ORDER v. David Shinn, et al., 13 Respondents.

15 Pending before the Court is the Report and Recommendation (R & R) by Magistrate Judge John Z. Boyle, recommending that this Court deny and dismiss with prejudice Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) pursuant to 28 U.S.C. § 2254.

18 (Doc. 15.) Petitioner did not file any objections to the R & R. For reasons stated below, the Court will adopt Judge Boyle’s recommendation for dismissal of the Petition.

20 I. BACKGROUND 21 Petitioner Justin D. McLaughlin filed a Petition for Writ of Habeas Corpus on January 28, 2019, challenging the state court’s calculation of his presentence incarceration credit. (Doc. 1.) Respondents filed a Response (Doc. 11) and Petitioner filed a Reply (Doc. 14.) The R & R concludes that Petitioner’s claim is not cognizable as a state law claim. (Doc. 15 at 1, 3) (“Whether the trial court violated the Arizona Rules of Criminal Procedure does not present a federal question.”) (citations omitted). The R & R further finds that even if even Petitioner’s claim is construed as alleging a Fourteenth Amendment violation, it is unexhausted and procedurally defaulted because Petitioner did not raise the claim in post-conviction proceedings or present it as a federal claim in state court. (Id.) Therefore, the R & R recommends that the Petition be denied and dismissed with prejudice.

3 (Id.) 4 The R & R, which was entered on September 5, 2019, informed the parties that they would have “14 days from the date of service of a copy of [the R & R] within which to file specific written objections with the Court” and that “[f]ailure to timely file objections to the [R & R] may result in the acceptance of the [R & R] by the district court without further review.” (Doc. 15 at 6.) To date, Petitioner has not filed any written objections to the R & R. II. LEGAL STANDARDS 11 When a federal district court reviews a state prisoner’s habeas corpus petition pursuant to 28 U.S.C. § 2254, “it must decide whether the petitioner is ‘in custody in violation of the Constitution or laws or treaties of the United States.’” Coleman v. Thompson, 501 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). When reviewing a Magistrate Judge’s R & R, this Court reviews de novo those portions of the report to which an objection is made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

18 Parties have fourteen days from the service of a copy of the R & R to file specific written objections with the Court. 28 U.S.C. ' 636(b)(1)(C). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

22 III. DISCUSSION 23 Having reviewed the R & R, and no Objections having been made by any party, the Court hereby incorporates and adopts the R & R. 25 Petitioner did not ask the Court to issue a certificate of appealability. But this Court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. A certificate of appealability may only issue when the petitioner “has made a substantial showing of the || denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has not made a 2|| substantial showing that denying the Petition would deny him a constitutional right. The || Court therefore will not issue a certificate of appealability.

4] IV. CONCLUSION 5 IT IS ORDERED that the Report and Recommendation (Doc. 15) is accepted.

6 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc.

7|| 1) 1s denied and dismissed with prejudice.

8 IT IS FURTHER ORDERED denying a certificate of appealability.

9 IT IS FURTHER ORDERED directing the Clerk to enter final judgment || consistent with this Order and dismiss the case.

11 Dated this 7th day of April, 2020.

Michael T. Liburdi 14 United States District Judge -3-