Lewis v. United States of America

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 12 of Magistrate Judge Jay R Irwin. Petitioner Kirk Lewis' motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. #1) is dismissed with prejudice. The Clerk shall terminate this action. Signed by Judge David G Campbell on 12/3/09. (LSP)

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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 Kirk Lewis, also known as Kirk Lewis, ) ) Jr., ) ) Petitioner, ) ) v. ) ) United States of America, ) ) Respondent. ) No. CV08-2084 PHX-DGC (JRI) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Pending before the Court are Petitioner Kirk Lewis' motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255 and United States Magistrate Judge Jay R. Irwin's Report and Recommendation ("R&R"). Dkt. ##1, 12. The R&R recommends that the Court dismiss the motion with prejudice. Dkt. #12 at 10. The Magistrate Judge advised the parties that they had ten 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 11 (citing Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). The parties did not file objections, which relieves the Court 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 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 will accept the R&R and dismiss the motion with prejudice. See 28 U.S.C. 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 28 636(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 Jay R. Irwin's R&R (Dkt. #12) is accepted. Petitioner Kirk Lewis' motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 (Dkt. #1) is dismissed with prejudice. 3. The Clerk of Court shall terminate this action. DATED this 3rd day of December, 2009. -2-

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