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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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, v. Andrew V. Acosta, Defendant/Movant.

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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

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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.

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