Serpa v. Ryan et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION. The Report and Recommendation of the Magistrate Judge 10 is accepted; the Clerk shall enter judgment denying and dismissing petitioner's 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; Petitioner's claims are procedurally barred and reasonable jurists would not disagree. Signed by Judge Neil V Wake on 1/21/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Albert D. Serpa, Jr.,

No. CV-13-00890-PHX-NVW (JFM)
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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

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Magistrate Judge James F. Metcalf (Doc. 10) regarding petitioner’s Petition for Writ of

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

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the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R. (R&R at 20). No

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objections were filed.

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

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Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

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Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

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review at all . . . of any issue that is not the subject of an objection.”). The absence of a

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timely objection also means that error may not be assigned on appeal to any defect in the

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rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A

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party may serve and file objections to the order within 14 days after being served with a

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

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

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1996); Philipps v. GMC, 289 F.3d 1117, 1120–21 (9th Cir. 2002).

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Notwithstanding the absence of an objection, the court has reviewed the R&R and

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finds that it is well taken. The court will accept the R&R and dismiss the Petition. See

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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”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 10) is accepted.

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

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and dismissing petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28

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U.S.C. § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.

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

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

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

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Petitioner’s claims are procedurally barred and reasonable jurists would not disagree.

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Dated this 21st day of January, 2014.

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