Deng v. Kane

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 12 . The Petition (Doc. 1) is DENIED WITHOUT PREJUDICE as moot. IT IS ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied because failure to file timely objections to any factual determinations of the Magistrate Judge is considered a waiver of a party's right to appellate review of those findings of fact. Fed. R. Civ. P. 72. Signed by Chief Judge Roslyn O Silver on 12/1/11. (DMT)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fuyin Yin Deng, Petitioner, 10 11 vs. 12 Katrina S. Kane, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-11-249-PHX-ROS (MHB) ORDER 15 16 17 Pending before the Court is a report and recommendation (“R&R”) (Doc. 12). For the reasons below, the R&R will be adopted. BACKGROUND 18 19 On February 7, 2011, Petitioner filed a petition for writ of habeas corpus (“Petition”). 20 Petitioner alleged immigration officials were holding him in detention pending his removal 21 to China. On June 6, 2011, Respondent filed a response. On October 21, 2011, the Court 22 issued an order to show cause (“OSC”) why this case should not be dismissed as moot 23 because Petitioner was no longer in detention. The copy of the OSC mailed to Petitioner was 24 returned as undeliverable because Petitioner was not in custody. On October 31, 2011, the 25 R&R recommended the case should be dismissed without prejudice because it is moot. 26 Petitioner did not file any objections to the R&R. On November 23, 2011, Respondent filed 27 a notice suggesting the case was moot because Petitioner was removed from the United 28 States on or about June 9, 2011. 1 ANALYSIS 2 A district court “must make a de novo determination of those portions of the report 3 . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the 4 findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C). A court 5 need review only those portions objected to by a party, meaning a court can adopt without 6 further review all unobjected to portions. See United States v. Reyna-Tapia, 328 F.3d 1114, 7 1121 (9th Cir. 2003). 8 9 10 11 The R&R recommends the case be dismissed as moot. The Court will adopt the R&R in full. IT IS ORDERED the Report and Recommendation (Doc. 12) is ADOPTED IN FULL. The Petition (Doc. 1) is DENIED WITHOUT PREJUDICE as moot. 12 IT IS ORDERED a Certificate of Appealability and leave to proceed in forma 13 pauperis on appeal is denied because failure to file timely objections to any factual 14 determinations of the Magistrate Judge is considered a waiver of a party’s right to appellate 15 review of those findings of fact. Fed. R. Civ. P. 72. 16 DATED this 1st day of December, 2011. 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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