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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Roger Dale Casey, Petitioner, 10 11 v. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-11-00155-PHX-NVW ORDER 15 16 Pending before the Court is the Report and Recommendation (“R&R”) of Magistrate 17 Judge Burns (Doc. 16) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 18 pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the Petition be denied 19 and dismissed with prejudice. The Magistrate Judge advised the parties that they had 20 fourteen days to file objections to the R&R (Doc. 16 at 8 (citing 28 U.S.C. § 636(b)(1))). No 21 objections were filed. 22 Because the parties did not file objections, the Court need not review any of the 23 Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); 24 Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 25 Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any 26 review at all . . . of any issue that is not the subject of an objection.”). The absence of a 27 timely objection also means that error may not be assigned on appeal to any defect in the 28 rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A 1 party may serve and file objections to the order within 14 days after being served with a copy 2 [of the magistrate’s order]. A party may not assign as error a defect in the order not timely 3 objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps 4 v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002). 5 Notwithstanding the absence of an objection, the Court has reviewed the R&R and 6 finds that it is well taken. The Court will accept the R&R and dismiss the Petition. See 28 7 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or 8 in part, the findings or recommendations made by the magistrate”). 9 10 IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 16) is accepted. 11 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing 12 Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1) 13 with prejudice. The Clerk shall terminate this action. 14 Having considered the issuance of a Certificate of Appealability from the order 15 denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of 16 Appealability and leave to proceed in forma pauperis on appeal are DENIED. The dismissal 17 of Petitioner’s Petition is justified by a plain procedural bar and jurists of reason would not 18 find the procedural ruling debatable. 19 DATED this 21st day of September, 2011. 20 21 22 23 24 25 26 27 28 -2-

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