Day v. Ryan et al

Filing 28

ORDER ACCEPTING 27 Magistrate Judge Metcalf's Report and Recommendation. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is dismissed with prejudice. The Clerk shall terminate this action. Pursuant to Rule 11(a) of the Rules G overning Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge G Murray Snow on 3/17/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard R. Day,

No. CV-13-00952-PHX-GMS
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 are Petitioner’s Petition for Writ of Habeas Corpus and

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United States Magistrate Judge James F. Metcalf’s Report and Recommendation

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(“R&R”). Docs. 1, 27. The R&R recommends that the Court dismiss the Petition with

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prejudice. Doc. 27 at 18. 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 18-19 (citing 28

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U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114,

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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

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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 Petition. See 28 U.S.C. § 636(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The

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district judge may accept, reject, or modify the recommended disposition; receive further

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evidence; or return the matter to the magistrate judge with instructions.”).

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IT IS ORDERED:

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Magistrate Judge Metcalf’s R&R (Doc. 27) is accepted.

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2.

Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is dismissed with

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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 2254 Cases, in the

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event Petitioner 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 17th day of March, 2014.

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