Jongeward v. Schriro et al

Filing 42

ORDER that Magistrate Judge Marshall's 36 Report and Recommendations is accepted. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) filed in Case No. CV-09-1252-PHX-GMS is DISMISSED. The Clerk of the Court shall TERMINATE both acti ons. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the even Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge G Murray Snow on 9/23/10. (ESL)

Jongeward v. Ryan et al

Doc. 42

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Richard Scott Jongeward, Petitioner, v. Charles Ryan, et al., Respondents.

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No. CV-08-562-PHX-GMS No. CV-09-1252-PHX-GMS (Consolidated) ORDER

Pending before the Court are Petitioner's Petition for Writ of Habeas Corpus and United States Magistrate Judge Jacqueline Marshall's Report and Recommendation ("R&R") in case No. 09-1252-PHX-GMS. (Doc. 1, 36). The R&R recommends that the Court dismiss the Petition. (Doc. 36 at 16). The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. Id. at 16-17 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Despite being advised of his ability to file objections to the R&R, Petitioner did not file an objection, but instead filed a Notice of Appeal (Doc. 38). Even should this Court consider the Notice of Appeal as an objection, it contains no objections to the R&R. Because Petitioner did not raise any objections to the R&R, the Court is relieved of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; 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

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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 has nonetheless reviewed the R&R and finds that it is well-taken. The Court will accept the R&R and dismiss 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"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). IT IS ORDERED: 1. 2. Magistrate Judge Marshall's R&R (Doc. 36) is ACCEPTED. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) filed in Case No. CV-

09-1252-PHX-GMS is DISMISSED. 3. 4. The Clerk of the Court shall TERMINATE both actions. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the even

Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). DATED this 23rd day of September, 2010.

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