Chastain v. Ryan et al

Filing 21

ORDER and DENIAL OF CERTIFICATE OF APPEALABILTIY AND IN FORMA PAUPERIS STATUS. The Report and Recommendation 13 of the Magistrate Judge is accepted; the Clerk shall enter judgment denying and dismissing the Petition for Writ of Habeas Corpus 1 with prejudice; the Clerk shall terminate this action; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because of plain procedural bar. Signed by Judge Neil V Wake on 2/26/14. (REW)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Montgomery Chastain, 10 Petitioner, 11 v. 12 Charles L. Ryan, et al., 13 Respondents. No. CV-13-00500-NVW (DKD) ORDER and DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS 14 15 16 Pending before the Court is the Report and Recommendation (“R&R”) of 17 Magistrate Judge Duncan (Doc. 13) regarding Petitioner’s Petition for Writ of Habeas 18 Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the 19 Petition be denied and dismissed with prejudice. The Magistrate Judge advised the 20 parties that they had fourteen days to file objections to the R&R. (R&R at 5 [citing 21 28 U.S.C. § 636(b)].) No objections were filed. 22 Because the parties did not file objections, the Court need not review any of the 23 Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); 24 Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 25 Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any 26 review at all . . . of any issue that is not the subject of an objection.”). The absence of a 27 timely objection also means that error may not be assigned on appeal to any defect in the 28 rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A 1 party may serve and file objections to the order within 14 days after being served with a 2 copy [of the magistrate’s order]. A party may not assign as error a defect in the order not 3 timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 4 1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002). 5 Notwithstanding the absence of an objection, the court has reviewed the R&R and 6 finds that it is well taken. The Court will accept the R&R and dismiss the Petition. See 7 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in 8 whole or in part, the findings or recommendations made by the magistrate”). 9 10 IT IS THEREFORE ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 13) is accepted. 11 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 12 and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 13 28 U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. 14 Having considered the issuance of a Certificate of Appealability from the Order 15 denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate 16 of Appealability and leave to proceed in forma pauperis on appeal are denied because of 17 plain procedural bar. 18 DATED this 26th day of February, 2014. 19 20 21 22 23 24 25 26 27 28 -2-

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