Garza v. Schriro et al

Filing 12

ORDER ACCEPTING REPORT AND RECOMMENDATION 11 . ORDER that Petitioner's Petition for Writ of Habeas Corpus 1 is denied. ORDER that this action is dismissed with prejudice. Signed by Judge James A Teilborg on 11/6/09. (TLJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ruben L. Garza, Petitioner, vs. Dora B. Schriro, et al., Respondents.

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No. CV 07-2497-PHX-JAT ORDER

Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition") (Doc. #1). The Magistrate Judge issued a Report and Recommendation ("R&R") (Doc. #11) recommending that the Petition be denied as untimely. Neither party has filed objections to the R&R. Therefore, the Court will accept 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). 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

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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 ten 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. #11) is ACCEPTED; IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. #1) is DENIED; and IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. DATED this 6th day of November, 2009.

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