Johnson v. Smith

Filing 14

ORDER that the 13 Report and Recommendation is adopted and the Petition (Doc. 1) is denied and this case is dismissed with prejudice. It is further ordered a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Chief Judge Roslyn O Silver on 06/10/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Johnson,
Petitioner,

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vs.

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D. Smith, Warden - F.C.I. Phoenix,
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Respondent.
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Case No. CV-10-1221-PHX-ROS (ECV)
ORDER

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Pending before the Court is Magistrate Judge Edward C. Voss’ May 16, 2011 Report

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and Recommendation. (Doc. 13). Magistrate Judge Voss recommends the petition for writ

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of habeas corpus be dismissed with prejudice. Petitioner did not file any objections.

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has

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filed timely objections to the magistrate judge's report and recommendations, the district

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court’s review of the part objected to is to be de novo. Id.; see also United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of

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factual and legal issues is required if objections are made, but not otherwise.”) (internal

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quotations and citations omitted).
No objections being made, the Court will adopt the Report and Recommendation in

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full.

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Accordingly,

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IT IS ORDERED the Report and Recommendation is ADOPTED and the Petition

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(Doc. 1) is DENIED and this case is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in

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forma pauperis on appeal is DENIED because Petitioner has not made a substantial showing

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of the denial of a constitutional right.

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DATED this 10th day of June, 2011.

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