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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Erasmo Lopez-Valencia, 

Petitioner, 

v. 

USA, 

Respondent.

No. CV-15-01954-PHX-SMM

No. CR-14-1153-01-PHX-SMM 

ORDER 

 Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct 

Sentence pursuant to 28 U.S.C. § 2255, filed on September 24, 2015. (Doc. 1.) The 

matter was referred to Magistrate Judge James F. Metcalf for a Report and 

Recommendation. On December 23, 2015, Respondent filed a Motion to Declare 

Attorney Client Privilege Waived. (Doc. 6.) Contrary to the Magistrate Judge’s Order 

(Doc. 7), Movant did not respond. Movant was then ordered to show cause why this case 

should not be dismissed for failure to prosecute and failure to comply with Court orders. 

(Doc. 9.) Movant again failed to respond. The Magistrate Judge filed his Report and 

Recommendation, to which no objections have been filed. 

STANDARD OF REVIEW

The Court “may accept, reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. 

Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the 

service of a copy of the Magistrate’s recommendation within which to file specific 

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written objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to 

object to a Magistrate Judge’s recommendation relieves the Court of conducting de novo

review of the Magistrate Judge’s factual findings and waives all objections to those 

findings on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure 

to object to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the 

propriety of finding waiver of an issue on appeal.” Id. 

DISCUSSION

 Having reviewed the Report and Recommendation of the Magistrate Judge, and no 

Objections having been made by any party thereto, the Court hereby incorporates and 

adopts the Magistrate Judge’s Report and Recommendation. 

 The standard for this Court to issue a Certificate of Appealability (“COA”) is 

whether the applicant has “made a substantial showing of the denial of a constitutional 

right .” 28 U.S.C. § 2253(c)(2); Rule 11(a) of the Rules Governing Section 2254 Cases. 

“Where a district court has rejected the constitutional claims on the merits, the showing 

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that 

reasonable jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district 

court denies a habeas petition on procedural grounds without reaching the prisoner’s 

underlying constitutional claim, a COA should issue when the prisoner shows, at least, 

that jurists of reason would find it debatable whether the petition states a valid claim of 

the denial of a constitutional right and that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling.” Id. Because the Court’s 

decision is procedural and the Court finds that jurists of reason would not find it 

debatable whether this Court decided the matter correctly, a certificate of appealability 

will be denied. 

CONCLUSION AND ORDER

 For the reasons set forth, 

 IT IS HEREBY ORDERED that the Court adopts the Report and 

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Recommendation of the Magistrate Judge filed on March 1, 2016. (Doc. 10.) 

IT IS FURTHER ORDERED that Movant’s Motion to Vacate, Set Aside, or 

Correct Sentence, filed September 28, 2015 (Doc. 1) be DISMISSED WITHOUT 

PREJUDICE for failure to prosecute. The Clerk of Court shall enter judgment 

accordingly. 

IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 

proceed in forma pauperis on appeal are DENIED because the dismissal was justified by 

a plain procedural bar and jurists of reason would not find the procedural ruling 

debatable. 

IT IS FURTHER ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 

to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 39 in 

CR-14-1153-01-PHX-SMM) be denied with prejudice. 

 Dated this 29th day of March, 2016. 

Honorable Stephen M. McNamee

Senior United States District Judge

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