McElyea v. Schriro et al

Filing 35

MEMORANDUM OF DECISION AND ORDER that the Court adopts the 34 Report and Recommendation of the Magistrate Judge. FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus is DENIED and DISMISSED, terminating this case. The Clerk of the Court shall enter judgment accordingly. Signed by Judge Stephen M McNamee on 01/29/09. (ESL)

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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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Joseph Lowell McElyea, Jr., Petitioner, vs. Dora B. Schriro, et al., Respondents. ) ) ) ) ) ) ) ) ) ) No.CIV 06-0885-PHX-SMM (HCE) MEMORANDUM OF DECISION AND ORDER Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Doc. #1). The matter was referred to Magistrate Judge Hector C. Estrada for a Report and Recommendation (Doc. #3). On December 31, 2008, the Magistrate Judge filed a Report and Recommendation with this Court (Doc. #34). To date, 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 ten days from the service of a copy of the Magistrate's recommendation within which to file specific 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 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 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. CONCLUSION For the reasons set forth, IT IS ORDERED that the Court adopts the Report and Recommendation of the Magistrate Judge (Doc. #34). IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus is DENIED and DISMISSED, terminating this case. The Clerk of the Court shall enter judgment accordingly. DATED this 29th day of January, 2009. -2-

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