Burkall v. USA

Filing 10

ORDER ACCEPTING REPORT AND RECOMMENDATION 9 . Petitioner's Motion to Vacate/Set Aside/Correct Sentence 1 is denied and dismissed with prejudice. The Clerk of Court shall terminate this action. The Court declines to issue a certificate of appealability. Signed by Judge G Murray Snow on 11/20/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Albert Burkall, Jr.,
Petitioner,

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v.

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No. CV-13-01465-PHX-GMS
CR-08-0665-PHX-GMS

United States of America,

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ORDER

Respondent.

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Pending before the Court are Petitioner’s Motion to Vacate/Set Aside/Correct

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Sentence and United States Magistrate Judge Michelle H. Burns’ Report and

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Recommendation (“R&R”). Docs. 1, 9. The R&R recommends that the Court deny the

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motion and dismiss with prejudice. Doc. 25 at 20. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R and that failure to file

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timely objections could be considered a waiver of the right to obtain review of the R&R.

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Id. at 5 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(b); United States v.

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Reyna-Tapia, 328 F.3d 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

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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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Magistrate Judge Burns’ R&R (Doc. 9) is accepted.

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2.

Petitioner’s Motion to Vacate/Set Aside/Correct Sentence (Doc. 1) is

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denied and 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 20th day of November, 2013.

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