Garcia v. Kane

Filing 21

ORDER Magistrate Judge Jacqueline Marshall's Report and Recommendation (Dkt. #20) is accepted. Petitioner's petition for writ of habeas corpus (Dkt. #1) is granted. Respondents shall, within 30 days from the date of this order, provide a he aring to Petitioner before an Immigration Judge with the power to grant Petitioner bail unless the Government establishes that Petitioner is a flight risk or a danger to the community. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/28/09. (KMG, )

Download PDF
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 Fernando Miguel Garcia, Petitioner, v. Katrina Kane, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV-07-1289-PHX-DGC (JJM) ORDER Petitioner Fernando Garcia is in federal custody pending resolution of a 2005 order of removal against him. Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. #1. United States Magistrate Judge Jacqueline Marshall has filed a Report and Recommendation ("R&R") recommending that the Court grant the petition and direct Respondents to provide a hearing to Petitioner before an Immigration Judge with the power to grant Petitioner bail unless the Government establishes that Petitioner is a flight risk or a danger to the community. Dkt. #20. Judge Marshall advised the parties that they had ten days to file objections to the R&R and that failure to file timely objections may be considered a waiver of the right to obtain de novo review of the R&R. Id. at 9 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The parties have not filed objections to the R&R, and the time for doing so has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Fed. R. Civ. P. 6(a), (e)). The lack of timely objections relieves the Court of its obligation to review the R&R. See ReynaTapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] 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 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 determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The Court accordingly will accept the R&R and grant the petition. See 28 U.S.C. § 636(b)(1) (the district court may accept, reject, or modify the recommendation of the magistrate judge); Fed. R. Civ. P. 72(b)(3) (same). IT IS ORDERED: 1. 2. 3. Magistrate Judge Jacqueline Marshall's R&R (Dkt. #20) is accepted. Petitioner's petition for writ of habeas corpus (Dkt. #1) is granted. Respondents shall, within 30 days from the date of this order, provide a hearing to Petitioner before an Immigration Judge with the power to grant Petitioner bail unless the Government establishes that Petitioner is a flight risk or a danger to the community. 4. The Clerk is directed to terminate this action. DATED this 28th day of April, 2009. -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?