Garibay-Mares v. United States of America

Filing 7

ORDER - IT IS ORDERED accepting the 6 Report and Recommendation of Magistrate Judge Anderson. FURTHER ORDERED that dft's 1 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 is denied. FURTHER ORDERED that the Clerk of the Court shall terminate this action. Signed by Judge Neil V Wake on 10/17/08. (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 Before the Court is the defendant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 (doc. #1). The Government filed a Response, and defendant filed no reply. On September 25, 2008, United States Magistrate Judge Lawrence O. Anderson issued a Report and Recommendation ("R & R") (doc. #6) recommending that the defendant's Motion to Vacate, Set Aside or Correct Sentence be denied. No objections were filed to the R & R. Because the parties did not file objections, the court need not review any of the Magistrate Judge's determinations on dispositive matters. See 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); 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."). The absence of a timely objection also means that error may not be assigned on appeal to any defect in the rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) vs. Jose Antonio Garibay-Mares, Defendant/Movant. United States of America, Plaintiff/Respondent, ) ) ) ) ) ) ) ) ) ) ) No. CV 07-2644 PHX-NVW (LOA) No. CR 05-1260 PHX-NVW IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ORDER 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 ("Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made."); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps v. GMC, 289 F.3d 1117, 112021 (9th Cir. 2002). Notwithstanding the absence of an objection, the Court has reviewed the R&R and agrees with it. 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"). IT IS THEREFORE ORDERED accepting the Report and Recommendation of Magistrate Judge Anderson (doc. # 6). IT IS FURTHER ORDERED that defendant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 (doc. #1) is denied. IT IS FURTHER ORDERED that the Clerk of the Court shall terminate this action. DATED this 17th day of October, 2008. -2-

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