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Seitz v. Ryan

United States District Court, D. Arizona

June 2, 2015

John William Seitz, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

PAUL G. ROSENBLATT, District Judge.

Having reviewed de novo the Report and Recommendation (Doc. 16) of Magistrate Judge Burns in light of petitioner Seitz's Objection to the Report and Recommendation (Doc. 17) and his Response to Respondent's Request to Denied [sic] Petitioner's Habeas Courpus [sic] Petition (Doc. 19), which the Court construes as a supplement to his objections, the Court finds that the petitioner's objections should be overruled as being without merit because the Magistrate Judge correctly concluded that the petitioner's timely-filed amended habeas corpus petition (Doc. 7), filed pursuant to 28 U.S.C. § 2254, should be denied in its entirety.

The Court agrees with the Magistrate Judge that the Court is precluded from reaching the merits of the four grounds the petitioner raised in his amended petition because the petitioner procedurally defaulted on all of those grounds inasmuch as he failed to properly present them to the state courts. The Court also agrees with the Magistrate Judge that the petitioner has not established any cause for his procedural defaults sufficient to excuse them, which includes his claims of ineffective assistance of his counsel, nor has he shown that any fundamental miscarriage of justice would occur if the merits of his claims are not reached.[1] Therefore,

IT IS ORDERED that petitioner John Seitz's Motion Requesting Status of Petition for Writ of Habeas Corpus (Doc. 20) is denied as moot given the issuance of this Order.

IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 16) is accepted and adopted by the Court.

IT IS FURTHER ORDERED that petitioner John Seitz's [Amended] Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 7) is denied and that this action is dismissed with prejudice.

IT IS FURTHER ORDERED that a certificate of appealability shall not issue and that the petitioner is not entitled to appeal in forma pauperis because the dismissal of the amended habeas petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.


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