Avenetti v. Schriro et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION and CERTIFICATE OF APPEALABILITY. The 24 Report and Recommendation of the Magistrate Judge is accepted; the Clerk shall enter judgment denying and dismissing, with prejudice, Petitioner's 12 Second Am ended Petition for Writ of Habeas; the Clerk shall terminate this action; Certificate of Appealability and leave to proceed in forma pauperis on appeal are Denied; Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 5/20/10. (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 The R&R on page 12 incorrectly refers to Document 1 as the Petition. As reflected on page 1 of the R&R, Defendant filed a Second Amended Petition [docs. 12 and 13] and the Court has made its determination based on that document. 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA David Russell Avenetti, Petitioner, v. Charles Ryan, Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV 09-116-PHX-NVW (MHB) and CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS ORDER Pending before the court is the Report and Recommendation ("R&R") of Magistrate Judge Burns (Doc. # 24) regarding petitioner's Second Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 2254 (Docs. # 12 and 13). The R&R recommends that the Petition be denied and dismissed with prejudice1. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 12 (citing 28 U.S.C. 636(b)). No objections were filed. 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 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 timely objection also means that error may not be assigned on appeal to any defect in the 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 14 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 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"). IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. #24) is accepted. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing petitioner's Second Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 2254 (Doc. #12) with prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner has not made a substantial showing of the denial of a constitutional right. DATED this 20th day of May, 2010. -2-

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