Fernandez-Mendoza v. USA

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION, the Magistrate Judge's Report and Recommendation 11 is accepted and adopted; Movant's Motion to Vacate, Set Aside or Correct Sentence 1 pursuant to 28 U.S.C. § 2255 is denied with prejudice ; the Clerk shall enter judgment accordingly; in the event Movant files an appeal, a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied because Movant has not made a substantial showing of the denial of a constitutional right, re: CR 11-355-PH-JAT. Signed by Senior Judge James A Teilborg on 8/16/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff/Respondent,
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vs.
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Juan Fernandez-Mendoza,
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Defendant/Petitioner/Movant.)
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United States of America,

No.

CR 11-355-PHX-JAT
CV 12-170-PHX-JAT (LOA)

ORDER

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Pending before the Court is Movant's Motion to Vacate, Set Aside or Correct Sentence
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pursuant to 28 U.S.C. § 2255 (Doc. 1). The Magistrate Judge issued a Report and
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Recommendation (“R&R”) (Doc. 11) recommending that the Motion be denied.
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Neither party has filed objections to the R&R. Accordingly, the Court hereby accepts
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the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts are not
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required to conduct “any review at all . . . of any issue that is not the subject of an objection”
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(emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
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banc) (“statute makes it clear that the district judge must review the magistrate judge’s
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findings and recommendations de novo if objection is made, but not otherwise” (emphasis
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in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).
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Accordingly,
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IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 11)
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is ACCEPTED and ADOPTED;
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IT IS FURTHER ORDERED that Movant's Motion to Vacate, Set Aside or Correct

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Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED WITH PREJUDICE; and the

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Clerk of the Court shall enter judgment accordingly.

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IT IS FINALLY ORDERED that pursuant to Rule 11 of the Rules Governing

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Section 2255 Proceedings, in the event Movant files an appeal, a certificate of appealability

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and leave to proceed in forma pauperis on appeal is denied because Movant has not made

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a substantial showing of the denial of a constitutional right.

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DATED this 16th day of August, 2013.

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