Horn v. Schriro, et al

Filing 159

ORDER ADOPTING REPORT AND RECOMMENDATIONS. 151 Report and Recommendations, 108 Motion to Vacate filed by Douglas Lee Horn, shall be stricken from the docket. . Signed by Judge Stephen M McNamee on 7/16/06. (LCF)

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Horn v. Schriro, et al Doc. 159 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 Douglas Lee Horn, ) ) Plaintiff, ) ) v. ) ) ) Dora Schriro, et al., ) ) Defendants. _________________________________ ) No. CV-04-2014-PHX-SMM (LOA) ORDER On June 8, 2006, Magistrate Judge Lawrence O. Anderson filed a Report and Recommendation, advising this Court that Plaintiff's Motion to Vacate Conviction and Sentence pursuant to 28 U.S.C. 2255 should be denied without prejudice, or in the alternative, stricken because there have been no criminal proceedings in this Court against Plaintiff, nor has Plaintiff been sentenced by this Court. (Dkt. 151.) To date, Plaintiff has not filed objections to Judge Anderson's Report and Recommendation. STANDARD OF REVIEW When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report . . . to which 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); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Case 2:04-cv-02014-SMM-LOA Document 159 Filed 07/18/2006 Page 1 of 2 Dockets.Justia.com 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 By failing to object to a Report and Recommendation, a party waives his right to challenge the Magistrate's factual findings, but not necessarily the Magistrate's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)). DISCUSSION Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Plaintiff thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation. CONCLUSION For the reasons set forth, IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Lawrence O. Anderson. (Dkt. 151.) IT IS FURTHER ORDERED that Plaintiff's Motion to Vacate Conviction and Sentence pursuant to 28 U.S.C. 2255 (dkt. 108) shall be STRICKEN from the docket. IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge Lawrence O. Anderson. DATED this 16th day of July, 2006. -2Case 2:04-cv-02014-SMM-LOA Document 159 Filed 07/18/2006 Page 2 of 2

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