Divine v. Chavez

Filing 96

ORDER ADOPTING REPORT AND RECOMMENDATION. The 95 Report and Recommendation is accepted and adopted; Petitioner's 86 motion to withdraw ground one from the amended petition is granted; ground one is dismissed without prejudice; the remaining claims in the amended petition are transferred to the United States District Court for the District of Oregon; the 93 motion for a temporary restraining order barring the collection of restitution is denied without prejudice to refiling the same motion before the Oregon District Court. Signed by Judge James A Teilborg on 11/4/09. (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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Steven Wayne Divine, Petitioner, vs. Richardo E. Chavez, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-1598-PHX-JAT ORDER Pending before this Court is Petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 2241. On September 30, 2009, the Magistrate Judge to whom this case was assigned filed a Report and Recommendation recommending that this Court transfer the remaining claims in this case to the United States District Court for the District of Oregon. Neither party filed objections to this recommendation. This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, `but not otherwise.'"). District courts are not required to conduct "any review at all . . . of any issue that is not the subject 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 of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made."). Because neither party has filed an objection, IT IS ORDERED that the Report and Recommendation (Doc. #95) is accepted and adopted; IT IS FURTHER ORDERED that Petitioner's motion to withdraw ground one (Doc. #86) from the amended petition filed September 25, 2008, is granted; ground one is dismissed without prejudice; and IT IS FURTHER ORDERED that the remaining claims in the amended petition filed September 25, 2008, are transferred to the United States District Court for the District of Oregon. IT IS FINALLY ORDERED that the motion for a temporary restraining order barring the collection of restitution (Doc. #93) is denied without prejudice to refiling the same motion before the Oregon District Court. DATED this 4th day of November, 2009. -2-

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