Pogue-Fuentes v. Shinn

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

9 Lorenzo Aaron Pogue-Fuentes, No. CV-18-04050-PHX-MTL 10 Petitioner, ORDER v. State of Arizona, et al., 13 Respondents.

15 Pending before the Court is the Report and Recommendation (R & R) by Magistrate Judge Michelle H. Burns, recommending that this Court deny and dismiss with prejudice Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc. 13) pursuant to 28 U.S.C. § 2254. (Doc. 22.) Petitioner did not file any objections to the R & R. For reasons stated below, the Court will adopt Judge Burns’ recommendation for dismissal of the Amended Petition.

21 I. BACKGROUND 22 Petitioner Lorenzo Aaron Pogue-Fuentes filed a Petition for Writ of Habeas Corpus on November 13, 2018. (Doc. 1.) On January 24, 2019, the Court dismissed the Petition with leave to amend because it did not allege that Petitioner was in custody in violation of the Constitution or treaties of the United States. (Doc. 9 at 2-3.) On May 2, 2019, Petitioner filed an Amended Petition, raising four grounds for relief under the United States Constitution. (Doc. 13.) Respondents filed a Response (Doc. 18) and Petitioner did not file a Reply. (Doc. 22 at 1.) The R & R concludes that each of the four grounds asserted in the Amended Petition are procedurally defaulted without an excuse for the default. (Doc. 22 at 9.) Therefore, the R & R recommends that the Amended Petition be denied and dismissed with prejudice. (Id.) 4 The R & R, which was entered on January 24, 2020, informed the parties that they would have “fourteen 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. 22 at 10.) 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.”

21 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 || substantial showing that denying the Amended 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. 22) is accepted.

6 IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas 7\| Corpus (Doc. 13) is 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 10th day of April, 2020.

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