Gunder v. Ryan et al

Filing 13

ORDER that the 11 Report and Recommendation of the Magistrate Judge is accepted. ORDERED that the Clerk of the Court enter judgment dismissing petitioner's 1 Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 without prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. Signed by Judge Neil V Wake on 12/7/2012. (LFIG)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Glenn Dennis Gunder,
Petitioner,

10
11

ORDER

vs.

12

No. CV-12-01838-PHX-NVW (BSB)

Charles L. Ryan, et al.,

13

Respondents.

14

Pending before the court is the Report and Recommendation (“R&R”) of

15

Magistrate Judge Bade (Doc. 11) regarding petitioner’s Petition for Writ of Habeas

16

Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the

17

Petition be denied and dismissed without prejudice. The Magistrate Judge advised the

18

parties that they had fourteen days to file objections to the R&R. (Doc. 11 at 3-4 (citing

19

28 U.S.C. § 636(b)(1)). No objections were filed.

20

Because the parties did not file objections, the court need not review any of the

21

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 14 days after being served with a

28

copy [of the magistrate’s order]. A party may not assign as error a defect in the order not

1

timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.

2

1996); Philipps 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

finds that it is well taken. The court will accept the R&R and dismiss the Petition without

5

prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See 28 U.S.C.

6

§ 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in

7

part, the findings or recommendations made by the magistrate”).

8
9

IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 11) is accepted.

10

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment

11

dismissing petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

12

§ 2254 (Doc. 1) without prejudice.

13

Having considered the issuance of a Certificate of Appealability from the order

14

denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court finds: Certificate of

15

Appealability and leave to proceed in forma pauperis on appeal are denied.

16

dismissal of the Petition is justified by a plain procedural bar.

17

Dated this 7th day of December, 2012.

18
19
20
21
22
23
24
25
26
27
28
-2 

The