Fulcher #345782 v. Thornell et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jesse Scott Fulcher,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-08142-PCT-JAT
ORDER
Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2254. (Doc. 1 at 1). This case was referred to Magistrate Judge
Bachus, who issued a Report and Recommendation (“R&R”) recommending the petition
be denied in its entirety and dismissed with prejudice. (Doc. 15 at 22). Petitioner moved
for an extension of time to object to the R&R and this Court allowed Petitioner to file his
objections by April 13, 2026. (Docs. 16, 17). On April 1, 2026, Petitioner filed his R&R
objections and moved for a Certificate of Appealability. (Docs. 18, 19). Respondents filed
a response to Petitioner’s objections. (Doc. 20). The Court now rules.
I. BACKGROUND
Because Petitioner states no objection to the R&R’s summary of the case’s facts or
procedural history, the following summary of facts and procedural background is taken
from the R&R.
The State of Arizona charged Petitioner with (1) one count of molestation of a child,
(2) four counts of sexual abuse of a victim under fifteen years of age, (3) two counts of
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 1 of 11

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
sexual abuse of a victim fifteen years of age or older, and (4) two counts of offering to
transfer marijuana. (Doc. 15 at 2). Following a bench trial, the superior court found
Petitioner guilty as charged and sentenced him to an aggregate term of 42.5 years
imprisonment. (Doc. 15 at 4). On appeal, the Arizona Court of Appeals affirmed his
convictions and sentences. (Doc. 15 at 5).
Petitioner initiated his first Post-Conviction Relief (“PCR”) proceeding in Mohave
County Superior Court in September 2021. (Doc. 15 at 5). After Petitioner’s PCR Counsel
certified that he could not find any colorable claims to raise, the superior court allowed
Petitioner to file a pro se petition. (Doc. 15 at 5–6). Petitioner filed his petition for PCR in
February 2023 under Arizona Rule of Criminal Procedure (“Arizona Rule”) 32. (Doc. 15
at 6). Although the superior court found that good cause existed to hold an evidentiary
hearing on some of Petitioner’s claims, the court ultimately concluded that Petitioner’s
arguments were unfounded and denied his petition. (Doc. 15 at 7). Petitioner appealed that
denial and the Arizona Court of Appeals granted review but denied relief. (Doc. 15 at 7–
8). The Arizona Court of Appeals issued its Mandate in February 2025. (Doc. 15 at 8).
On July 1, 2025, Petitioner filed a Petition for Writ of Habeus Corpus with this
Court pursuant to 28 U.S.C. § 2254 and outlined four grounds for relief. (Doc. 1). As
relevant here, Petitioner alleges that State of Arizona denied him his fundamental due
process rights guaranteed by the Arizona and United States Constitutions when the State
of Arizona (1) “failed to file and disclose information to the defense” as required by
Arizona Rule 15.1 and 15.6 (“Ground Two”) and (2) “failed to disclose
exculpatory/impeachment evidence” in violation of Brady v. Maryland, 373 U.S. 83 (1963)
(“Ground Three”).1 (Doc. 15 at 15, 17).
1 Petitioner notes that he accepts the Magistrate Judge’s findings “as to Grounds One
and Four, but moves this Court to provide relief as to Grounds Two and Three.” (Doc. 18
at 11). Because Petitioner does not object to Grounds One and Four, the Court accepts the
R&R’s findings on those grounds without additional review. Thomas v. Arn, 474 U.S. 140,
149 (1985) (noting district courts are not required to conduct “any review at all . . . of any
issue that is not the subject of an objection”); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003) (en banc) (“Neither the Constitution nor [28 U.S.C. § 636(b)(1)(C)]
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.”).
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 2 of 11

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The R&R recommends denying and dismissing Petitioner’s petition with prejudice
and without leave to amend. (Doc. 15 at 22). The R&R further recommends that a
Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied.
(Doc. 15 at 22).
II. STANDARD OF REVIEW
When reviewing a state prisoner’s habeas corpus petition under 28 U.S.C. § 2254,
a federal district court “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). This Court “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). The district judge must review the findings and recommendations of
the Magistrate Judge de novo if there is an objection from one or both parties. Reyna-Tapia,
328 F.3d at 1121; Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589
F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the
[Magistrate Judge’s] recommendations to which the parties object”); see also 28 U.S.C. §
636(b)(1) (“[T]he court shall make a de novo determination of those portions of the [report
and recommendation] to which objection is made.”).
III. DISCUSSION
The R&R recommends denying Petitioner habeas relief on Grounds Two and Three
because the claims, while “technically exhausted,” are “procedurally defaulted based on an
express procedural bar” applied by the Arizona Court of Appeals pursuant to Arizona Rule
32.2(a)(3). (Doc. 15 at 18). The R&R alternatively recommends dismissing Ground Two—
to the extent the claim is not procedurally defaulted—because “it is not cognizable on
review by this Court.” (Doc. 15 at 20).
Although Petitioner objects to the R&R’s procedural default findings as to Grounds
Two and Three, Petitioner did not object to the R&R’s finding that Ground Two, beyond
being procedurally barred, is not a cognizable claim for federal habeas review. Because
Petitioner did not object on this basis, the Court accepts the R&R’s finding that Ground
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 3 of 11

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Two is not a cognizable claim. Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz.
2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and
legal issues is required if objections are made, ‘but not otherwise.’”). The Court will not
consider Petitioner’s procedural-default arguments as to Ground Two because the R&R
provides an alternative, independent, non-objected-to basis for dismissing the petition on
that ground. Id. Accordingly, the Court’s review is limited to Petitioner’s objections as to
Ground Three. Ground Three alleges that the State of Arizona violated its Brady
obligations by failing to “disclose exculpatory/impeachment evidence.” (Doc. 1 at 19; Doc.
15 at 15, 17). Petitioner alleges that this failure denied him his right to due process under
Article II, § 4 of the Arizona Constitution and the 5th and 14th Amendments of the United
States Constitution. (Doc. 1 at 19).
A. Legal Standard
“An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that . . . the applicant
has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A);
see also id. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure, the question presented.”).
To exhaust state remedies, a petitioner must afford the state courts the
opportunity to rule upon the merits of his federal claims by “fairly
presenting” them to the state’s “highest” court in a procedurally appropriate
manner. Castille v. Peoples, 489 U.S. 346, 349, (1989); Baldwin v. Reese,
541 U.S. 27, 29 (2004) (stating that “[t]o provide the State with the necessary
‘opportunity,’ the prisoner must “fairly present” her claim in each
appropriate state court . . . thereby alerting the court to the federal nature of
the claim.”). …[I]n Arizona, unless a prisoner has been sentenced to death,
the “highest court” requirement is satisfied if the petitioner has [properly]
presented his federal claim to the Arizona Court of Appeals either on direct
appeal or in a petition for post-conviction relief.
Date v. Schriro, 619 F. Supp. 2d 736, 762 (D. Ariz. 2008).
A state prisoner must “fairly present” his claims to the Arizona Court of Appeals by
describing “both the operative facts and the federal legal theory” supporting his claims,
with citations to “the specific constitutional guarantee upon which he bases his claim in
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 4 of 11

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
federal court.” Id. at 764. If a state prisoner has not presented his claim “(1) to the proper
forum, (2) through the proper vehicle, and (3) by providing the proper factual and legal
basis for the claim,” then he has failed to exhaust his remedies in state court and federal
habeas relief is unavailable. See id. at 765 (quoting Insyxiengmay v. Morgan, 403 F.3d 657,
668 (9th Cir. 2005)).
A claim is procedurally defaulted if “[(1)] the state court was presented with the
claim but declined to reach the issue for procedural reasons, or [(2)] it is clear that the state
court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376
(9th Cir. 2002) (internal quotations omitted). In either instance of default, federal review
of the claim is prohibited unless the prisoner can make a showing of “cause and prejudice”
or establish a “fundamental miscarriage of justice.” Date, 619 F. Supp. 2d at 766 (internal
quotations and citation omitted).
B. Analysis
The R&R found that Ground Three is procedurally defaulted and that Petitioner
failed to show that an exception applied to overcome the procedural bar. (Doc. 15 at 18).
Given Petitioner’s objections to the R&R’s findings, this Court will consider the procedural
default issue de novo. Reyna-Tapia, 328 F.3d at 1121.
Federal courts will not review a federal claim decided by a state court if the state
court’s ruling rests on a procedural state law ground “that is independent of the federal
question and adequate to support the judgment.” Coleman, 501 U.S. at 729. The
“independent and adequate state ground doctrine” bars federal habeas review when “a state
court declined to address a prisoner’s federal claims because the prisoner had failed to meet
a state procedural requirement.” Id. at 729–30. “In these cases, the state judgment rests on
independent and adequate state procedural grounds.” Id. at 730. District courts look to the
“the decision of the last state court to which the petitioner presented his federal claims” to
determine whether the court’s decision relied on an independent and adequate state ground.
See id. at 735.
The last state court Petitioner presented his federal claims to was the Arizona Court
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 5 of 11

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of Appeals, which reviewed his challenge to the superior court’s denial of his PCR petition.
Petitioner alleged that, during trial, a police detective’s testimony “opened the door” that
one of Petitioner’s victims had been “subjected to a prior forensic interview as either a
victim/witness or suspect.” (Doc. 11-4 at 46). Because the State allegedly failed to disclose
this fact, Petitioner complained he was denied the opportunity to impeach the victim’s
testimony at trial. (Doc. 11-4 at 46). When seeking PCR, Petitioner moved for access to
multiple police reports that that the State allegedly withheld. (Doc. 11-4 at 46). Petitioner
argued that the exculpatory police reports showed one of the victims in his case “has a
propensity to cultivate . . . internet sexual relationships with strange men.” (Doc. 11-4 at
47).
The Court of Appeals concluded that Petitioner’s claim—based on the State’s
alleged failure to disclose exculpatory/impeachment evidence—was precluded from
review on procedural grounds, stating:
On review, [Petitioner] contends the trial court abused its discretion by
“failing to adequately address” his claim . . . that the state had violated . . .
the requirements of Brady. But [Petitioner’s] claim . . . pursuant to Brady . .
. [is] raised under Rule 32.1(a), and [is] therefore precluded due to the failure
to raise [the claim] on appeal. See Ariz. R. Crim. P. 32.2(a)(3).
(Doc. 11-4 at 106–07).
As the Court of Appeals noted, Petitioner sought PCR pursuant to Rule 32.1(a),
which allows such relief is a “defendant’s conviction was obtained, or the sentence was
imposed, in violation of the United States or Arizona constitutions.” Ariz. R. Crim. P.
32.1(a). However, Rule 32.2(a)(3) precludes defendants from obtaining relief under Rule
32.1(a) based on any ground “waived at trial or on appeal . . . except when the claim raises
a violation of a constitutional right that can only be waived knowingly, voluntarily, and
personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). The Court of Appeals declined
to reach the merits of the Brady-violation claim, finding that Petitioner waived the issue by
failing to argue it on direct appeal. (Doc. 11-4 at 107).
“[T]he Supreme Court has recognized Arizona Rule of Criminal Procedure
32.2(a)(3) as an independent and adequate state ground that bars federal habeas review of
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 6 of 11

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
constitutional claims.” Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (citing
Stewart v. Smith, 536 U.S. 856, 860 (2002)). Because the Arizona Court of Appeals found
Petitioner’s Brady claim was waived under Rule 32.2(a)(3), Ground Three is procedurally
defaulted and thus barred from this Court’s consideration, unless Petitioner “can [(1)]
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law, or [(2)] demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice,” Coleman, 501 U.S. at 725. The Court will address the
two exceptions in turn.
i. Cause and Prejudice
“Cause” refers to a legitimate excuse for the procedural default, Hogan v. Bean, 140
F.4th 1001, 1029 (9th Cir. 2025), and “must be something external to the [prisoner]” that
is not fairly attributable to him, Coleman, 501 U.S. at 753. The existence of “cause”
“ordinarily turn[s] on whether the prisoner can show that some objective factor external to
the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Id.
(internal quotations and citation omitted). Showing that the factual or legal basis of a claim
was not reasonably available to counsel or demonstrating that “some interference by
officials” made compliance with state procedural rules impracticable, would satisfy the
“cause” requirement. Id.
“Prejudice” is defined as “actual harm resulting from the claimed constitutional
error.” LaGrand v. Stewart, 173 F.3d 1144, 1148 (9th Cir. 1999). A prisoner must show
more than the possibility of prejudice, and instead must demonstrate that errors at trial
“worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Hogan, 140 F.4th at 1026.
Petitioner claims the “default protocol used by the [Arizona Court of Appeals] fails
to meet muster” because the record does not support the Court of Appeals’ conclusion that
Petitioner waived his Brady claim by failing to raise it on direct appeal. (Doc. 18 at 5, 10).
He asserts he has suffered unquantifiable damage from the Courts of Appeals’ “abhorrent
application” of Rule 32.2(a)(3) because Ground Three could not have been raised on
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 7 of 11

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
appeal.2 (Doc. 18 at 10). Petitioner claims he satisfied the “cause” standard by appealing
the Court of Appeals’ PCR decision to the Arizona Supreme Court. (Doc. 18 at 9–10). He
claims “[t]he ‘resulting prejudice’ standard has been thoroughly documented at each level
of the states’ judiciary.” (Doc. 18 at 10).
Petitioner appears to argue that the “legitimate excuse” or “cause” for the procedural
default was the Court of Appeals’ erroneous application of Arizona Rule 32.2. In essence,
Petitioner claims the Court of Appeals misapplied state procedural rules by finding his
claim was waived because he asserts, without explanation, that the claim could not have
been raised on direct appeal. This is not the type of excuse that constitutes “cause” for
purposes of overcoming a procedural bar in federal habeas proceedings. Indeed, the Ninth
Circuit Court of Appeals has held that “[f]ederal habeas courts lack jurisdiction . . . to
review state court applications of state procedural rules.” Poland v. Stewart, 169 F.3d 573,
584 (9th Cir. 1999) (rejecting petitioner’s argument that the superior court improperly
found his claims were waived under Arizona Rule 32.2 and affirming the district court’s
denial of the petition for writ of habeas corpus); Lewis v. Jeffers, 497 U.S. 764, 765 (1990)
(“[F]ederal habeas corpus relief does not lie for errors of state law.”).
Even if Petitioner could establish cause, he has not established that the absence of
the allegedly exculpatory police reports prejudiced him at trial or on direct appeal.
Petitioner’s bare assertion that the “resulting prejudice” from the withheld reports “has
been thoroughly documented” falls woefully short of demonstrating “actual harm . . . from
the claimed constitutional error.”3 LaGrand, 173 F.3d at 1148. Accordingly, Petitioner fails
2 Petitioner provides no explanation as to why he could not have raised the claim on
direct appeal.
3 Indeed, the Court reviewed a transcript from the evidentiary hearing that the
superior court held on Petitioner’s petition for PCR. (Doc. 11-4 at 160–222). The superior
court overseeing the evidentiary hearing was the same court that presided over Petitioner’s
bench trial. At the evidentiary hearing, only one police report was deemed relevant to
Petitioner’s claim, (Doc. 11-4 at 216:8–13), and the parties focused exclusively on that
report, which contained information suggesting that one of the minor victims had
previously lied about her age, (Doc. 11-4 at 212:4–20). The superior court explicitly noted
that even if the police report at issue “may have been Brady material, it would not have
affected, even if it was inquired into, the outcome of what this court decided at the bench
trial.” (Doc. 11-4 at 217–218). The court noted it “d[id] not find that [the Brady issue] is a
basis for which there was prejudice to the [Petitioner] even if there was a Brady violation.”
(Doc. 11-4 at 218).
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 8 of 11

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to show that the cause-and-prejudice exception applies to overcome the procedural bar as
to Ground Three.
ii. Fundamental Miscarriage of Justice
“[T]he miscarriage of justice exception is limited to those extraordinary cases where
the petitioner asserts his innocence and establishes that the court cannot have confidence
in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008)
(emphasis in original). A credible claim of actual innocence must be supported with “new
reliable evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Because
of “the rarity of such evidence, in virtually every case, the allegation of actual innocence
has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000).
Petitioner does not assert he is innocent or argue that this procedural-default
exception applies to his case. Accordingly, there is no excuse for the procedural default of
Ground Three and this Court will not review it.
IV. Leave to Amend
In concluding and recommending that the existing Petition be dismissed, the R&R
cites Jarvis v. Nelson, 440 F.2d 13 (9th Cir. 1971) (per curiam) to evaluate whether the
Court should sua sponte grant Petitioner leave to amend the Petition. Because any
anticipated amendment would be futile, the Magistrate Judge recommends the Petition be
denied without leave to amend. (Doc. 15 at 21–22).
In Jarvis, the Ninth Circuit Court of Appeals stated that “a petition for habeas corpus
should not be dismissed without leave to amend unless it appears that no tenable claim for
relief can be pleaded were such leave granted.” 440 F.2d at 14. This ruling was in the
context of the dismissal of a habeas petition for failure to state a claim for relief, and
suggests that, because there was no state-court record available, no answer to the petition
had been filed. Id. Moreover, Jarvis relied on cases where the petition was summarily
dismissed with leave to amend for failure to state a claim. See Pembrook v. Wilson, 370
F.2d 37, 39 n.4 (9th Cir. 1966) (“The proper course in this circumstance would be to grant
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 9 of 11

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
leave to proceed in forma pauperis, but dismiss the application with leave to amend,
pointing out the deficiency which requires amendment.”); Wilson v. Wilson, 372 F.2d 211,
212 (9th Cir. 1967). See also Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013)
(citing Jarvis and finding that leave to amend should have been granted before summarily
dismissing a “mixed” petition including some unexhausted claims). This approach allows
a petitioner a second bite at the apple when the respondent has not yet answered the petition
and the litigant is first notified of the pleading’s deficiencies through a court’s order of
dismissal.4
Here, the Court’s service Order found that Petitioner stated a “tenable claim,” i.e.,
a claim sufficient to require an answer. (Doc. 5). Respondents filed a limited answer to the
Petition, arguing that the presented claims were procedurally barred or non-cognizable.
(Doc. 11). Because Respondents’ answer identified the deficiencies in the Petition, this
Court need not sua sponte consider whether Petitioner should be granted leave to amend.
Instead, Petitioner’s recourse—had he deemed an amendment advisable after receipt of
Respondents’ answer—was to seek leave to amend. See Mayle v. Felix, 545 U.S. 644, 655
(2005) (noting that Federal Rule of Civil Procedure 15 “allows pleading amendments with
‘leave of court’ any time during a [habeas] proceeding”). Petitioner has not done so.
Accordingly, the Court does not sua sponte address whether to grant leave to amend.
V. Certificate of Appealability
Before Petitioner can appeal this Court’s judgment, a certificate of appealability
(“COA”) must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1); Rule 11(a)
of the Rules Governing Section 2254 Cases. “The district court must issue or deny a
certification of appealability when it enters a final order adverse to the applicant.” Rule
4 In addition to granting leave to amend upon a court’s order of dismissal, precedent
requires that before sua sponte dismissing a habeas petition on procedural grounds not
asserted by respondents, courts must permit the petitioner an opportunity to be heard on
the defense. See e.g., Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998) (habeas
court sua sponte raising issue of procedural default must provide the petitioner notice of
the default and allow him to respond to the argument for dismissal); Day v. McDonough,
547 U.S. 198, 209–11 (2006) (Magistrate Judge sua sponte raised statute of limitations
defense and gave the petitioner notice and a fair opportunity to demonstrate why his case
should not be dismissed as untimely).
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 10 of 11

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11(a) of the Rules Governing Section 2254 Cases. Pursuant to 28 U.S.C. § 2253(c)(2), a
COA may issue only when the petitioner “has made a substantial showing of the denial of
a constitutional right.” The court must indicate which specific issues satisfy this showing.
See 28 U.S.C. § 2253(c)(3). When the district court denies a habeas petition on procedural
grounds without reaching the merits of the underlying constitutional claim, a COA will
issue only if reasonable jurists could debate (1) whether the petition states a valid claim of
the denial of a constitutional right and (2) whether the court’s procedural ruling was correct.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon review of the record, the Court concludes that a COA shall not issue because
the resolution of the Petition is not debatable among reasonable jurists. See Ramirez v.
Thornell, CV-23-00114-TUC-JGZ, 2023 WL 8622630, at *1 (D. Ariz. Dec. 13, 2023).
VI. CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Petitioner’s Objections to the R&R (Doc. 18) are overruled.
IT IS FURTHER ORDERED that the R&R (Doc. 15) is accepted in part and
modified in part, as specified herein.
IT IS FURTHER ORDERED that Petitioner’s Motion Requesting a Certificate of
Appealability (Doc. 19) is denied and a Certificate of Appealability shall not issue.
IT IS FURTHER ORDERED that the Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and this case is dismissed with prejudice.
The Clerk of Court shall enter judgment accordingly.
Dated this 12th day of May, 2026.
Case 3:25-cv-08142-JAT Document 23 Filed 05/12/26 Page 11 of 11