Muniz-Chaidez v. USA

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Burns' Report and Recommendation 7 is accepted; Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence 1 is dismissed with prejudice; the Clerk shall terminate this action; in the event Movant files an appeal, the Court declines to issue a Certificate of Appealability because reasonable jurists would not find the Court's procedural ruling debatable, re: CR 11-1021-PHX-PGR. Signed by Judge G Murray Snow on 3/25/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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vs.

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No. CV 12-2481-PHX-GMS
CR 11-1021-PHX-GMS

Juan Manuel Muniz-Chaidez,

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ORDER

Defendant/Movant.

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Pending before the Court are Defendant/Movant’s Juan Manuel Muniz-Chaidez

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Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence and United

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States Magistrate Judge Michelle H. Burns’ Report and Recommendation (“R&R”).

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Docs. 1, 7. The R&R recommends that the Court deny the motion and dismiss with

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prejudice. Doc. 7 at 2. The Magistrate Judge advised the parties that they had fourteen

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days to file objections to the R&R and that failure to file timely objections could be

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considered a waiver of the right to obtain review of the R&R. Id. at 2-3 (citing 28

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U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b), 72; United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003)).

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The parties did not file objections, which relieves the Court of its obligation to

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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149

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(1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is

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not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must

TERMPSREF

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-

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taken. The Court will accept the R&R and deny the motion and dismiss with prejudice.

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See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate”); Fed. R. Civ.

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P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended

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disposition; receive further evidence; or return the matter to the magistrate judge with

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instructions.”).

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IT IS ORDERED:

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1.

Magistrate Judge Burns’ R&R (Doc. 7) is accepted.

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2.

Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or

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Correct Sentence (Doc. 1) is dismissed with prejudice.

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3.

The Clerk of Court shall terminate this action.

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4.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Movant files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 25th day of March, 2013.

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TERMPSREF

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