Payan v. United States of America

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION. The 10 Report and Recommendation of the Magistrate Judge is adopted in full, including the denial of a Certificate Appealability; the Motion to Vacate, Set Aside or Correct Sentence is dismissed without prejudice for failure to prosecute. Signed by Judge Earl H Carroll on 3/12/10. (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 A civil action is opened when a motion is filed under 28 U.S.C. 2255 and all subsequent filings are docketed in the civil case. The 2255 motion is also filed in the underlying criminal case. 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff/Respondent, vs. Jesus Felix Payan, Defendant/Movant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-1338-PHX-EHC (JRI) No. CR 08-0193-PHX-EHC ORDER On June 22, 2009, Movant filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. 2255.1 The United States has filed a Response. The matter was referred to Magistrate Judge Jay R. Irwin who filed a Report and Recommendation on February 5, 2010 recommending that the Motion be dismissed without prejudice for failure to prosecute (Dkt. 10 - CIV 09-1338). The district court reviews de novo the portions of the Magistrate Judge's Report and Recommendation to which there is a filed objection. 28 U.S.C. 636(b)(1)(C)("a judge of the court shall make a de novo determination of those portions of the report, ..., to which objection is made."); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 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 2003). The district court is not required to review any issue that is not the subject of an objection. Schmidt v. Johnstone, 263 F. Supp. 2d 1219 (D. Ariz. 2003), citing Thomas v. Arn, 474 U.S. 140, 149 (1985). Movant has not filed an objection to the Report and Recommendation. The docket sheet shows that the Report and Recommendation was mailed to Movant at his address of record on February 5, 2010 and that the mail was returned as undeliverable on February 22, 2010 (Dkt. 11). The Report and Recommendation will be adopted as the Order of the Court. Accordingly, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (Dkt. 10 - CIV 09-1338-PHX-EHC (JRI)) is adopted in full, including the denial of a Certificate of Appealability. IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside or Correct Sentence is dismissed without prejudice for failure to prosecute. DATED this 12th day of March, 2010. -2-

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