Casey v. Ryan et al

Filing 17

ORDER re 16 ACCEPTING AND ADOPTING REPORT AND RECOMMENDATIONS; the Clerk of the Court shall enter judgment dismissing Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED. Signed by Judge Neil V Wake on 9/21/2011. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Roger Dale Casey,
Petitioner,

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v.

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Charles L. Ryan, et al.,
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Respondents.
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No. CV-11-00155-PHX-NVW
ORDER

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Pending before the Court is the Report and Recommendation (“R&R”) of Magistrate

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Judge Burns (Doc. 16) regarding Petitioner’s Petition for Writ of Habeas Corpus filed

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pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be denied

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and dismissed with prejudice. The Magistrate Judge advised the parties that they had

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fourteen days to file objections to the R&R (Doc. 16 at 8 (citing 28 U.S.C. § 636(b)(1))). No

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objections were filed.

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Because the parties did not file objections, the Court need not review any of the

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Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

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Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

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review at all . . . of any issue that is not the subject of an objection.”). The absence of a

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timely objection also means that error may not be assigned on appeal to any defect in the

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rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A

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party may serve and file objections to the order within 14 days after being served with a copy

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[of the magistrate’s order]. A party may not assign as error a defect in the order not timely

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objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps

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v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).

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Notwithstanding the absence of an objection, the Court has reviewed the R&R and

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finds that it is well taken. The Court will accept the R&R and dismiss the Petition. See 28

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U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate
Judge (Doc. 16) is accepted.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing

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Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1)

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with prejudice. The Clerk shall terminate this action.

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of

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Appealability and leave to proceed in forma pauperis on appeal are DENIED. The dismissal

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of Petitioner’s Petition is justified by a plain procedural bar and jurists of reason would not

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find the procedural ruling debatable.

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DATED this 21st day of September, 2011.

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