Guesar v. United States of America

Filing 11

ORDER ACCEPTING REPORT AND RECOMMENDATIONS 10 . FURTHER ORDERED that dft's motion to vacate, set aside or correct sentence pursuant to 28 USC section 2255 (doc #1) is denied and dismissed with prejudice. FURTHER ORDERED that the Clerk shall enter judgment accordingly and terminate this action. Signed by Judge Neil V Wake on 7/27/2009. (LAD)

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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 vs. Rigoberto Mendoza Guesar, Defendant/Movant. United States of America, Plaintiff/Respondent, ) ) ) ) ) ) ) ) ) ) ) No. CR 07-1135 PHX-NVW No. CV 09-0312 PHX-NVW (MEA) ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Before the court is the defendant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 (doc. #1) and the government's Response (doc. #9). No reply was filed. On June 26, 2009, United States Magistrate Judge Aspey issued a Report and Recommendation ("R & R") (doc. #10) recommending that the defendant's Motion to Vacate, Set Aside or Correct Sentence be denied and dismissed with prejudice. No objections were filed to the R & R. 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 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 10 days after being served with a copy 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 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 deny the Petition and dismiss it with prejudice. 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 accepting the Report and Recommendation of Magistrate Judge Aspey (doc. #10). IT IS FURTHER ORDERED that defendant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 (doc. #1) is denied and dismissed with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and terminate this action. DATED this 27th day of July, 2009. -2-

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