Bartschi v. United States of America

Filing 14

** ORDER VACATED PER COURT ORDER 17 , filed 6/14/2010 ** ORDER the Report and Recommendation Doc. 13 is ADOPTED and the Motions Docs. 1 , 5 ARE DENIED. FURTHER ORDERED a Certificate of Appealability IS DENIED. Signed by Judge Roslyn O Silver on 6/11/10. (KMG) Modified on 6/14/2010 (KMG).

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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. Carlin Grant Bartschi, Defendant/Petitioner. United States of America, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-1439-PHX-ROS No. CR-06-349-PHX-ROS ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Pending before the Court is Magistrate Judge Edward C. Voss's Report and Recommendation, which was filed on May 27, 2010. (Doc. 13) Magistrate Judge Voss recommends Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. 2255 (Doc. 1) and Motion to Grant Relief Requested in Motion to Vacate (Doc. 5) be denied. Petitioner has not filed any objections. A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 USC 636(b). Where any party has filed timely objections to the magistrate judge's report and recommendations, the district court's review of the part objected to is to be de novo. Id.; see also United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 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.") (internal 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 quotations and citations omitted). No objections being made, the Court will adopt the Report and Recommendation in full. Pursuant to 28 U.S.C. foll 2255, R. 11, the Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability will be denied because the Petitioner has not made a substantial showing of the denial of a constitutional right as required by 28 U.S.C. 2253(c)(2). Accordingly, IT IS ORDERED the Report and Recommendation (Doc. 13) is ADOPTED and the Motions (Docs. 1, 5) ARE DENIED. FURTHER ORDERED a Certificate of Appealability IS DENIED. DATED this 11th day of June, 2010. -2-

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