Gonzales #085605 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Frank M Gonzales,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-00593-TUC-JCH
ORDER
Before 	the 	Court 	is 	Magistrate 	Judge 	Bruce 	G. 	MacDonald’s 	Report 	and
Recommendation (“R&R”) (Doc. 11) on Petitioner Frank M Gonzales’s Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). Magistrate Judge MacDonald
recommends denying Gonzales’s Petition and dismissing the case with prejudice. (Doc.
11.) Neither party objects to the R&R. (See generally Docket.)
A district court reviews objected-to portions of an R&R de novo. 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b); United States v. Remsing, 874 F.2d 614, 617
(9th Cir. 1989). Failure to timely object may be considered a waiver of a party’s right to de
novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121–22 (9th Cir. 2003) (en banc). The Court reviews for clear error any unobjected-to
portions of the R&R. See Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The R&R sets forth the applicable statutes and caselaw governing a habeas
petitioner’s claim that was decided on the merits in state court. (Doc. 11 at 4–6.) After
examining the Arizona Court of Appeals’ decision denying Petitioner’s constitutional law
Case 4:24-cv-00593-JCH Document 12 Filed 11/10/25 Page 1 of 3

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claims, the R&R found Petitioner failed to demonstrate the state appellate decision was
contrary to, or an unreasonable application of, clearly established federal law. (Id. at 5–11.)
The R&R also found Petitioner’s new arguments in Reply were procedurally barred
because he failed to raise them at state court. (Id. at 10.)
After independent review, the Court is satisfied that Magistrate Judge MacDonald’s
recommendation is sound. The Court will adopt the R&R in full.
Before Petitioner can appeal the Court’s judgment, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). Federal Rule of
Appellate Procedure 22(b) requires the district court that rendered the judgment denying
the petition to either issue a certificate of appealability or state why a certificate should not
issue.
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). A substantial showing is
made when the resolution of an issue on appeal is debatable among reasonable jurists, if
courts could resolve the issue differently, or if the issue deserves further proceedings. Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). If an issue is decided on procedural grounds, a
substantial showing is made if reasonable jurists would find it debatable whether the
applicant had a valid claim for the denial of a constitutional right and whether the district
court was correct in its procedural ruling. Id. at 485.
The R&R resolves 	Petitioner’s 	issues 	on 	both constitutional and procedural
grounds. (Doc. 11 at 9–11.) Resolution of the issues addressed in the R&R are not
debatable among reasonable jurists, nor do they deserve further proceedings. Considering
the standards for granting a certificate of appealability, the Court concludes that a
certificate shall not issue.
Accordingly,
IT IS ORDERED ADOPTING in full the R&R (Doc. 11), DENYING Petitioner
Gonzales’s 	Petition 	for 	a 	Writ 	of 	Habeas 	Corpus 	under 	28 	U.S.C. 	§ 2254, 	and
DISMISSING this matter with prejudice. The Clerk of Court shall docket this matter
Case 4:24-cv-00593-JCH Document 12 Filed 11/10/25 Page 2 of 3

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accordingly.
The Court DECLINES to issue a certificate of appealability, finding jurists of
reason would not find this Court’s ruling debatable.
Dated this 10th day of November, 2025.
Case 4:24-cv-00593-JCH Document 12 Filed 11/10/25 Page 3 of 3