Husband v. Ryan et al

Filing 55

*VACATED by Doc. 58 --ORDER ADOPTING 41 Magistrate Judge Aspey's Report and Recommendation. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and dismissed with prejudice. IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed in forma pauperis on appeal are denied. The Clerk of Court shall terminate this action. Signed by Judge Douglas L Rayes on 5/28/15. (KGM) Modified on 5/28/2015 (SJF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sean Patrick Husband,
Petitioner,

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ORDER

v.

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No. CV-13-01320-PHX-DLR

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court are Petitioner Sean Patrick Husband’s Petition for Writ

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of Habeas Corpus and United States Magistrate Judge Mark E. Aspey’s Report and

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Recommendation (“R&R”). (Docs. 1, 41.) The R&R recommends that the Court deny

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the Petition. (Doc. 41 at 38.) The Magistrate Judge advised the parties that they had

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

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be considered a waiver of the right to obtain review of the R&R. (Id. at 38–39 (citing

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

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2003)).

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Respondents did not file an objection. Petitioner filed an objection on February 9,

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2015, which the Court struck on March 18, 2015, for failure to comply with the Local

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Rules of Civil Procedure. (Doc. 49.) The Court granted Petitioner leave to file an

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amended objection by April 2, 2015. (Id.) Petitioner did not file an amended objection,

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and the Court adopted the R&R on April 16, 2015. (Doc. 50.)

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About two weeks later, Petitioner filed a Motion to Reconsider and/or Vacate

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Judgment and Alternatively for an Extension of Time, claiming that he never received the

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Court’s order striking in his objection and that he was unaware that no objection was on

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the record. (Doc. 52.) After a hearing on May 13, 2015, the Court granted Petitioner’s

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motion and gave Petitioner leave to file an objection by May 20, 2015. (Doc. 54.)

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Petitioner has not filed an objection, 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.”). Accordingly,

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IT IS ORDERED that Magistrate Judge Aspey’s R&R (Doc. 41) is accepted and
adopted by the Court.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas
Corpus (Doc. 1) is denied and dismissed with prejudice.
IT IS FURTHER ORDERED that a certificate of appealability and leave to
proceed in forma pauperis on appeal are denied.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action.

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Dated this 28th day of May, 2015.

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Douglas L. Rayes
United States District Judge

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