Wright v. United States of America

Filing 19

ORDER accepting Report and Recommendations 15 . IT IS FURTHER ORDERED that Defendants Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. Section 2255 (Doc. 1) is denied and dismissed with prejudice.IT IS FURTHER ORDERED that Defen dant's "Motion to Receive Transcripts at Court Costs with an Affidavit of Indigency" (Doc. 16) and Defendant's Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 17) are denied. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and terminate this action. (See document for details). Signed by Judge Neil V Wake on 12/2/11.(LAD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Aaron Michael Wright, 9 Defendant/Movant, 10 vs. 11 United States of America, 12 Plaintiff/Respondent. 13 ) ) ) ) ) ) ) ) ) ) No. CR 09-00241-PHX-NVW No. CV 11-01857-PHX-NVW ORDER 14 Before the Court is Defendant’s Motion Under 28 U.S.C. Section 2255 to Vacate, Set 15 Aside or Correct Sentence (Doc. 1), the government’s Response (Doc. 6), and Defendant’s 16 Reply (Doc. 14). On November 4, 2011, United States Magistrate Judge Aspey issued a 17 Report and Recommendation (“R&R”) (Doc. 15) recommending that Defendant’s Motion 18 to Vacate, Set Aside or Correct Sentence be denied and dismissed. No objections were filed 19 to the R&R. 20 Because the parties did not file objections to the R&R, the Court need not review any 21 of the Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); 22 Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 23 Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any 24 review at all . . . of any issue that is not the subject of an objection.”). The absence of a 25 timely objection also means that error may not be assigned on appeal to any defect in the 26 rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A 27 party may serve and file objections to the order within 10 days after being served with a copy 28 [of the magistrate’s order]. A party may not assign as error a defect in the order not timely 1 objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps 2 v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002). 3 Notwithstanding the absence of an objection, the Court has reviewed the R&R and 4 agrees with the Magistrate Judge’s determinations. Accordingly, the Court will accept the 5 R&R and dismiss the Motion to Vacate, Set Aside or Correct Sentence. See 28 U.S.C. § 6 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, 7 the findings or recommendations made by the magistrate judge”). 8 Defendant also filed a “Motion to Receive Transcripts at Court Costs with an 9 Affidavit of Indigency” [sic] (Doc. 16) and an Application to Proceed in District Court 10 Without Prepaying Fees or Costs (Doc. 17) on December 1, 2011. Because the Court will 11 accept the R&R and dismiss Defendant’s case, these motions will be denied as moot. 12 However, the Court also notes that Defendant’s prisoner trust fund account (Doc. 18) has a 13 sufficient balance to pay for the transcript of his sentencing hearing. In any event, the 14 transcript would not avoid denial of Defendant’s Motion. 15 16 IT IS THEREFORE ORDERED accepting the Report and Recommendation of Magistrate Judge Aspey (Doc. 15). 17 IT IS FURTHER ORDERED that Defendant’s Motion to Vacate, Set Aside or Correct 18 Sentence pursuant to 28 U.S.C. Section 2255 (Doc. 1) is denied and dismissed with 19 prejudice. 20 IT IS FURTHER ORDERED that Defendant’s “Motion to Receive Transcripts at 21 Court Costs with an Affidavit of Indigency” (Doc. 16) and Defendant’s Application to 22 Proceed in District Court Without Prepaying Fees or Costs (Doc. 17) are denied. 23 24 25 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and terminate this action. DATED this 2nd day of December, 2011. 26 27 28 -2-

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