Walford v. Ryan et al

Filing 14

ORDER ACCEPTING REPORT AND RECOMMENDATION 13 . ORDER that Respondents' Motion to Dismiss 11 is granted. ORDER that Petitioner's Petition for Writ of Habeas Corpus 4 is dismissed without prejudice. ORDER that a Certificate of Appealability is denied (see attached pdf for complete information). Signed by Judge Neil V Wake on 6/10/11. (TLJ)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gary Walford, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-11-00395-PHX-NVW ORDER 15 16 Pending before the court is the Report and Recommendation (“R&R”) of Magistrate 17 Judge Duncan (Doc.13) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 18 pursuant to 28 U.S.C. § 2254 (Doc. 4). 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. 13 at 3 (citing 28 U.S.C. § 636(b)(1)). 21 No 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 11 12 13 14 IT IS THEREFORE ORDERED that the Report and Recommendation of Magistrate Judge Duncan (Doc. 13) is accepted. IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss For Failure to Satisfy Exhaustion Requirement (Doc. 11) is granted. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 4) is dismissed without prejudice. 15 IT IS FURTHER ORDERED that a Certificate of Appealability is denied because 16 dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not 17 find the procedural ruling debatable. 18 DATED this 10th day of June, 2011. 19 20 21 22 23 24 25 26 27 28 -2-

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