Rico-Bustamante v United States of America

Filing 7

ORDER ADOPTING 5 Report and Recommendation of the Magistrate Judge as the order of this Court. Movant's Motion to Vacate, Set Aside, or Correct Sentence is denied (Doc. 31). IT IS FURTHER ORDERED that a Certificate of Appealablity and leave to proceed in forma pauperis on appeal is denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Judge Mary H Murguia on 12/28/10. (LSP)

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Rico-Bustamante v United States of America Doc. 7 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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff/Respondent, vs. Gabriel Rico-Bustamante, Defendant/Movant. ) ) ) ) ) ) ) ) ) ) ) No. CR 07-0611-PHX-MHM CV 08-1108-PHX-MHM ORDER Gabriel Rico-Bustamante filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 on June 12, 2008. Respondent filed its response on August 11, 2008. Movant filed his reply on September 18, 2008. The Magistrate Judge filed his Report and Recommendation on September 10, 2010 recommending that Movant's Motion to Vacate, Set Aside, or Correct Sentence be denied. In his Report and Recommendation the Magistrate Judge advised the parties that they had 14 days from the date of service of a copy of the Report and Recommendation within which to file specific written objections with the Court. The time to file such objections has long since expired and no objections to the Report and Recommendation have been filed. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Dockets.Justia.com 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 After a complete and independent review of the issues presented, the Court finds itself in agreement with the Report and Recommendation of the Magistrate Judge. IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court (Doc. 5). IT IS FURTHER ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence is denied (Doc. 31). IT IS FURTHER ORDERED that a Certificate of Appealablity and leave to proceed in forma pauperis on appeal is denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. DATED this 28th day of December, 2010. -2-

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