Parker v. Stems et al

Filing 17

ORDER ACCEPTING REPORT AND RECOMMENDATION 16 . Petitioner's Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice as untimely. Petitioner's Motion to Stay 9 is denied and a certificate of appealability is denied b ecause denial of the Petition is based on a plain procedural bar and jurists of reason would not find this Court's procedural ruling debatable. The Clerk of Court shall enter judgment of dismissal with prejudice Signed by Judge James A Teilborg on 8/15/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Keith T. Parker,
Plaintiff,

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vs.

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Warden J. Stems; et al.,
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Defendants.
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No. CV 10-2616-PHX-JAT
ORDER

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Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus

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(“Petition”) (Doc. 1). The Magistrate Judge issued a Report and Recommendation (“R&R”)

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(Doc. 16) recommending that the Petition be denied as untimely.

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Neither party has filed objections to the R&R. Accordingly, the Court hereby accepts

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the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts are not

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required to conduct “any review at all . . . of any issue that is not the subject of an objection”

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(emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc) (“statute makes it clear that the district judge must review the magistrate judge’s

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findings and recommendations de novo if objection is made, but not otherwise” (emphasis

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in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).

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Based on the foregoing,

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IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and

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Recommendation (Doc. 16) is ACCEPTED; accordingly,

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with prejudice as untimely,
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Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is denied and dismissed

because the Petition is untimely and a stay would not change the timeliness of the
Petition, Petitioner’s motion to stay (Doc. 9) is denied,

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in the event Petitioner files an appeal, issuance of a certificate of appealability is

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denied because denial of the Petition is based on a plain procedural bar and jurists

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of reason would not find this Court’s procedural ruling debatable. See Slack v.

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McDaniel, 529 U.S. 473, 484 (2000), and

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the Clerk of the Court shall enter judgment of dismissal with prejudice.

DATED this 15th day of August, 2011.

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