Franco v. Bartos et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS. That the 19 Report and Recommendation of the Magistrate Judge is accepted. That the Clerk of the Court enter judgment dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 with prejudice. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 12/12/08. (ESL)

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 v. Edward Bartos, et al., Respondents. Rudy Franco, Petitioner, ) ) ) ) ) ) ) ) ) ) ) No. CV 07-0173 PHX-NVW (HCE) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Pending before the court is the Report and Recommendation ("R&R") of Magistrate Judge Estrada (Doc. # 19) regarding petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. # 1). The R&R recommends that the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the parties that they had ten days to file objections to the R&R. (R&R at 7 (citing 28 U.S.C. § 636(b)). No objections were filed. Because the parties did not file objections, the court need not review any of the Magistrate Judge's determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."). The absence of a timely objection also means that error may not be assigned on appeal to any defect in the rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) ("Within 10 days after being served with a copy of the magistrate judge's order, a party may

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serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made."); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps v. GMC, 289 F.3d 1117, 112021 (9th Cir. 2002). Notwithstanding the absence of an objection, the court has reviewed the R&R and finds that it is well taken. The court will accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"). IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. # 19) is accepted. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. # 1) with prejudice. The Clerk shall terminate this action. DATED this 12th day of December, 2008.

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