Reyes v. Ryan et al

Filing 12

ORDER ADOPTING 11 Report and Recommendation of the Magistrate Judge. The Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) with prejudice. The Clerk shall terminate this action. Hav ing considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, the Court FINDS: 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 5/13/14. (LSP)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Luis Enrique Reyes,

No. CV-13-01499-PHX-NVW
Petitioner,

10
11

v.

12

ORDER

Charles L. Ryan, et al.,

13

Respondents.

14
15

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

16

Magistrate Judge James F. Metcalf (Doc. 11) regarding Petitioner’s Petition for Writ of

17

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

18

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

19

parties that they had fourteen days to file objections to the R&R. (R&R at 17 (citing

20

28 U.S.C. § 636(b)). No objections were filed.

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

(“A party may serve and file objections to the order within 14 days after being served

1

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

2

order not timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174

3

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

4

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

5

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

6

28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in

7

whole or in part, the findings or recommendations made by the magistrate”).

8
9

IT IS THEREFORE ORDERED that the Report and Recommendation of the
Magistrate Judge (Doc. 11) is accepted.

10

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

11

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

12

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

13

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

14

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

15

of Appealability and leave to proceed in forma pauperis on appeal are denied because of

16

plain procedural bar.

17

Dated this 13th day of May, 2014.

18
19
20
21
22
23
24
25
26
27
28

-2-