Guerrero-Melchor v. United States of America

Filing 7

ORDER that the 6 Report and Recommendation is ADOPTED. IT IS ORDERED Petitioners motion to vacate, set aside or correct sentence (Doc. 1) is DENIED. The case is dismissed with prejudice. IT IS ORDERED a Certificate of Appealability and leave to pro ceed in forma pauperis on appeal is denied because the denial of the motion is justified by a plain procedural bar and jurists of reason would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Chief Judge Roslyn O Silver on 11/02/11. (ESL)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Ivan Guerrero-Melchor,
Petitioner,

10
11

vs.

12
United States of America,
13
Respondent.
14

)
)
)
)
)
)
)
)
)
)
)

No. CR-06-1143-PHX-ROS
No. CV-11-1169-PHX-ROS
ORDER

15
16

On September 27, 2011, United States Magistrate Judge Duncan issued a Report and

17

Recommendation. (Doc. 6). Plaintiff has not objected to the Report and Recommendation.

18

A district judge “may accept, reject, or modify, in whole or in part, the findings or

19

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has

20

filed timely objections to the magistrate judge's report and recommendations, the district

21

court’s review of the part objected to is to be de novo. Id.; see also United States v. Reyna-

22

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

23

1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of

24

factual and legal issues is required if objections are made, but not otherwise.”) (internal

25

quotations and citations omitted).
No objections being made, the Court will adopt the Report and Recommendation in

26
27
28

full.
Accordingly,

1

IT IS ORDERED the Report and Recommendation (Doc. 6) is ADOPTED.

2

IT IS ORDERED Petitioner’s motion to vacate, set aside or correct sentence (Doc.

3

1) is DENIED. The case is dismissed with prejudice.

4

IT IS ORDERED a Certificate of Appealability and leave to proceed in forma

5

pauperis on appeal is denied because the denial of the motion is justified by a plain

6

procedural bar and jurists of reason would not find the ruling debatable, and because

7

Petitioner has not made a substantial showing of the denial of a constitutional right.

8

DATED this 2nd day of November, 2011.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-