Burder v. Kane

Filing 16

ORDER ADOPTING 14 Report and Recommendation of Magistrate Judge Irwin. Petitioner's Petition for Writ of Habeas Corpus (Doc.1) is DISMISSED WITHOUT PREJUDICE. The Clerk shall TERMINATE this action. Pursuant to Rule 11 (a) of the Rules Governi ng Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge G Murray Snow on 6/27/11. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Burder,
Petitioner,

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v.

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Katrina S. Kane,
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Respondent.
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No. CV-11-207-PHX-GMS (JRI)
ORDER

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

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United States Magistrate Judge Jay R. Irwin’s Report and Recommendation (“R&R”).

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Docs. 1, 14. The R&R recommends that the Court dismiss without prejudice the Petition.

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Doc. 14 at 5. The Magistrate Judge advised the parties that they had fourteen days to file

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objections to the R&R and that failure to file timely objections could be considered a waiver

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of the right to obtain review of the R&R. Id. at 6 (citing Fed. R. Civ. P. 72(b), 8(b), LRCiv.

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7.2(e)(3), United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).

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The parties did not file objections, which relieves the Court of its obligation to review

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the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985)

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(“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the

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subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de

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novo any part of the magistrate judge’s disposition that has been properly objected to.”). The

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Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court will

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accept the R&R and dismiss without prejudice the Petition. See 28 U.S.C. § 636(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge

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may accept, reject, or modify the recommended disposition; receive further evidence; or

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return the matter to the magistrate judge with instructions.”).

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IT IS ORDERED:

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1.

Magistrate Judge Irwin’s R&R (Doc. 14) is ACCEPTED.

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2.

Petitioner’s Petition for Writ of Habeas Corpus (Doc.1) is DISMISSED

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WITHOUT PREJUDICE.

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The Clerk of Court shall TERMINATE this action.

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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event

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Petitioner files an appeal, the Court declines to issue a certificate of appealability because

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reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v.

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

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DATED this 27th day of June, 2011.

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