Calvillo-Jimenez v. United States of America

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION; the 18 Report and Recommendation ofMagistrate Judge Irwin is accepted; the 1 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 is denied; the Clerk shall enter judgment denying the Petition and shall terminate this action. Signed by Judge Neil V Wake on 10/5/09. (REW, )

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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 (CV doc. #1), the government's Response (CR doc. #79), the reply (CR doc. # 80), the supplemental responses (CV doc. # 11, 16), and the supplemental reply (doc. # 17). On August 13, 2009, United States Magistrate Judge Jay Irwin issued a Report and Recommendation ("R & R") (CV doc. # 18) 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 vs. Oscar Calvillo-Jimenez, Defendant/Movant. United States of America, Plaintiff/Respondent, ) ) ) ) ) ) ) ) ) ) ) No. CR 05-0749-PHX- NVW No. CV 08-0176-PHX-NVW (JRI) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 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 rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) ("A party may serve and file objections to the order within 10 days after being served with a copy [of the magistrate's order]. A party may not assign as error a defect in the order not timely objected to."); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002). Notwithstanding the absence of an objection, the court has reviewed the R&R and finds that it is well taken. The court will accept the R&R and deny the Petition. 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 Irwin (doc. # 18). IT IS FURTHER ORDERED that defendant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 (CV doc. # 1) is denied. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment denying the Petition and shall terminate this action. DATED this 5th day of October, 2009. -2-

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