Foster v. Ryan et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS 32 : IT IS FURTHER ORDERED that the portion of Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 asserting a claim under Anders v. California, 368 U.S. 738 (1967 ) is DENIED WITH PREJUDICE ON THE MERITS. (Doc. 7.) The remainder of Petitioner's Amended Petition is procedurally barred and DISMISSED WITH PREJUDICE. (Doc. 7.) The Clerk of Court shall terminate this action accordingly. IT IS FURTHER ORDERED DENYING, pursuant to 28 U.S.C. § 2253 (c)(2), issuance of a certificate of appealability on any of Petitioner's claims based on the reasons provided in the Report and Recommendation of Magistrate Judge James F. Metcalf. (Doc. 32.) IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge James F. Metcalf. Signed by Senior Judge Stephen M McNamee on 7/11/12. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13

Roosevelt Foster, Jr.,

)
)
Petitioner,
)
)
v.
)
)
)
Charles L. Ryan, et al.,
)
)
Respondents.
_________________________________ )

No. CV 11-1316-PHX-SMM (JFM)

MEMORANDUM OF DECISION
AND ORDER

14
15

On May 8, 2012, Magistrate Judge James F. Metcalf filed a Report and Recommendation

16

advising this Court that Petitioner’s Amended Petition for Writ of Habeas Corpus pursuant to

17

28 U.S.C. § 2254 (the “Amended Petition”) (Doc. 7) should be denied and dismissed with

18

prejudice. (Doc 32.) To date, Petitioner has not filed objections to Judge Metcalf’s Report and

19

Recommendation.
STANDARD OF REVIEW

20
21

When reviewing a Magistrate Judge’s Report and Recommendation, this Court must

22

“make a de novo determination of those portions of the report . . . to which objection is made,”

23

and “may accept, reject, or modify, in whole or in part, the findings or recommendations made

24

by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391,

25

1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir.

26

1983)).

27

By failing to object to a Report and Recommendation, a party waives his right to

28

challenge the Magistrate’s factual findings, but not necessarily the Magistrate’s legal

1

conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.

2

1998) (failure to object to Magistrate’s legal conclusion “is a factor to be weighed in

3

considering the propriety of finding waiver of an issue on appeal”); Martinez v. Ylst, 951 F.2d

4

1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).

5

DISCUSSION

6

Having reviewed Petitioner’s Petition and, thereafter, having reviewed the Magistrate

7

Judge’s Report and Recommendation and the record de novo, and no objections having been

8

made by Petitioner thereto, the Court hereby incorporates and adopts the Magistrate Judge’s

9

Report and Recommendation.
CONCLUSION

10
11

For the reasons set forth,

12

IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of

13

Magistrate Judge James F. Metcalf. (Doc. 32.)

14

IT IS FURTHER ORDERED that the portion of Petitioner’s Amended Petition for

15

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 asserting a claim under Anders v.

16

California, 368 U.S. 738 (1967) is DENIED WITH PREJUDICE ON THE MERITS. (Doc.

17

7.) The remainder of Petitioner’s Amended Petition is procedurally barred and DISMISSED

18

WITH PREJUDICE. (Doc. 7.) The Clerk of Court shall terminate this action accordingly.

19

IT IS FURTHER ORDERED DENYING, pursuant to 28 U.S.C. § 2253(c)(2),

20

issuance of a certificate of appealability on any of Petitioner’s claims based on the reasons

21

provided in the Report and Recommendation of Magistrate Judge James F. Metcalf. (Doc. 32.)

22

IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order

23
24

to all parties as well as to Magistrate Judge James F. Metcalf.
DATED this 11th day of July, 2012.

25
26
27
28
-2-