Pablo v. United States of America

Filing 3

ORDER ADOPTING 2 Report and Recommendation of the Magistrate Judge. Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 Re: CR 03-764 PHX-JAT 1234 and 1 in corresponding civil case CV 07-2094 PHX-JAT(JCG) is DENIED WITH PREJUDICE. The Clerk shall enter judgment accordingly. Signed by Judge James A Teilborg on 9/11/08. (LSP)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff/Respondent, ) ) vs. ) ) ) Nicholas Pablo, ) Defendant/Petitioner/Movant.) ) ) United States of America,

No. ORDER

CR 03-0794-PHX-JAT-07 CV 07-2094-PHX-JAT (JCG)

Pending before the Court is Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. #1/#1234). The Magistrate Judge issued a Report and Recommendation ("R&R") (Doc. #2) recommending that the Motion be denied.1 Neither party has filed objections to the R&R. Accordingly, the Court hereby accepts the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection" (emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) ("statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise" (emphasis in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).

Due to a change in the Court's docketing system, the Government's response is docketed only in the CR number, at Doc. #1266.

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However, the Court notes that, in contradiction of Reyna-Tapia and Schmidt, the Magistrate Judge states that her recommendation is subject to the District Court conducting, "its independent review of the record." The Court is unclear whether the Magistrate Judge is attempting to direct this Court to conduct a de novo review or is suggesting some other standard. Nonetheless, consistent with Reyna-Tapia and Schmidt, this Court has not conducted any review because no objections were filed. If Petitioner (or Respondents) failed to file objections in reliance on the Magistrate Judge's admonition to the District Court, either party may move for reconsideration of this Order within thirty days and shall contemporaneously file such parties' objections with the motion for reconsideration. Accordingly, IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. #2) is ACCEPTED and ADOPTED; IT IS FURTHER ORDERED that Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. #1/#1234) is DENIED WITH PREJUDICE; and the Clerk of the Court shall enter judgment accordingly. DATED this 11th day of September, 2008.

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