Acosta v. United States of America

Filing 9

ORDER - IT IS ORDERED: Magistrate Judge David K. Duncan's 7 Report and Recommendation is accepted. Movant's 1 Motion to Vacate, Set Aside or Correct Sentence is denied. The Clerk of the Court shall terminate this action. Signed by Judge G Murray Snow on 12/22/08. (SAT)

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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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff/Respondent, v. Andrew V. Acosta, Defendant/Movant. ) ) ) ) ) ) ) ) ) ) ) No. CV-07-1160-PHX-GMS (DKD) No. CR-03-0075-PHX-GMS ORDER Pending before the Court are Movant's Motion to Vacate, Set Aside or Correct Sentence and United States Magistrate Judge David K. Duncan's Report and Recommendation ("R&R"). Dkt. ## 1 and 7. The R&R recommends that the Court deny the motion because "[a] claim raised and rejected on direct appeal cannot form the basis for a section 2255 motion ." Dkt. # 7 at 4. The Magistrate Judge advised the parties that they had ten days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. Id. at 6 (citing 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)). The parties did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; 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."); Fed. R. Civ. P. 72(b)(3) ("The district judge must 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 determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The Court has nonetheless reviewed the R&R and finds that it is welltaken. The Court will accept the R&R and deny the motion. 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"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). IT IS ORDERED: 1. 2. denied. 3. The Clerk of the Court shall terminate this action. Magistrate Judge David K. Duncan's R&R (Dkt. # 7) is accepted. Movant's Motion to Vacate, Set Aside or Correct Sentence (Dkt. #1) is DATED this 22nd day of December, 2008. -2-

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