Harper v. Ryan et al
Filing
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ORDER that Report and Recommendation of the Magistrate Judge (Doc. 16 ) is accepted. FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. & #167; 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 3/21/2012. (KMG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Elijah Omega Harper,
Petitioner,
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No. CV 11-00923-PHX-NVW (JFM)
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vs.
ORDER
AND
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Charles L. Ryan, et al.,
CERTIFICATE OF APPEALABILITY
AND IN FORMA PAUPERIS STATUS
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Respondents.
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Pending before the court is the Report and Recommendation (“R&R”) of
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Magistrate Judge James F. Metcalf (Doc. 16) regarding petitioner’s Petition for Writ of
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Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
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parties that they had fourteen days to file objections to the R&R. (R&R at 22.) 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
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copy [of the magistrate’s order]. A party may not assign as error a defect in the order not
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timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.
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1996); Philipps 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
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28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in
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whole or 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 denying
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and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.
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§ 2254 (Doc. 1) 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
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of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner
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has not made a substantial showing of the denial of a constitutional right.
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Dated this 21st day of March, 2012.
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