Garcia #230310 v. Ryan et al
Filing
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ORDER accepting and adopting the Magistrate's 18 Report and Recommendation as this Court's findings of fact and conclusions of law. ORDERED dismissing the 8 Amended Petition for Writ of Habeas Corpus. IT IS FURTHER ORDERED pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines to issue a certificate of appealability. The Clerk of the Court shall close this case. Signed by Judge John J Tuchi on 12/10/2014. (LFIG)
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NOT FOR PUBLICATION
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Maximiliano Serrano Garcia,
Petitioner,
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No. CV-13-01787-PHX-JJT
ORDER
v.
Charles L. Ryan, et al.,
Respondents.
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At issue are Petitioner Maximiliano Serrano Garcia's pro se Amended Petition for
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Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 (Doc. 8) (“Petition”), and
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Magistrate Judge Michelle H. Burns’s Report and Recommendation (R & R) (Doc. 18),
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regarding that Petition. The parties filed no objections to Judge Burns’s R & R; the Court
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thus accepts and adopts the R & R as the findings of fact and conclusions of law of this
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Court and denies the Petition for Writ of Habeas Corpus.
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The events and posture of this case are thoroughly detailed in the R & R, and this
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Court fully incorporates by reference the “Factual & Procedural Background” section of
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the R & R into this Order.
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When presented with a magistrate judge’s R&R, the district court may “accept,
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reject, or modify the recommended disposition; receive further evidence; or return the
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matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §
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636(b)(1). Where the parties object to an R & R, “[a] judge of the [district] court shall
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make a de novo determination of those portions of the [R & R] to which objection is
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made.” 28 U.S.C. § 636(b)(1); see also Thomas v. Arn, 474 U.S. 140, 149–50 (1985).
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When no objection is filed, the district court need not review the R & R de novo. Wang v.
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Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna–Tapia, 328
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F.3d 1114, 1121–22 (9th Cir. 2003) (en banc).
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The Court will not disturb a magistrate judge’s order unless her factual findings
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are clearly erroneous or her legal conclusions are contrary to law. 28 U.S.C.
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§ 636(b)(1)(A). “[T]he magistrate judge's decision ... is entitled to great deference by the
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district court.” United States v. Abonce–Barrera, 257 F.3d 959, 969 (9th Cir. 2001).
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Failure to raise an objection waives all objections to the magistrate judge’s findings of
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fact, and failure to object to a magistrate judge’s conclusion “is a factor to be weighed in
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considering the propriety of finding waiver of an issue on appeal.” Turner v. Duncan, 158
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F.3d 449, 455 (9th Cir. 1998) (internal citations omitted).
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As the parties have not objected to the R & R, the Court is relieved of its
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obligation to review it. See Thomas, 474 U.S. at 149 (“[Section 636(b)(1) ] does not ...
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require any review at all ... of any issue that is not the subject of an objection.”); Reyna–
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Tapia, 328 F.3d at 1121. Nonetheless, this Court has reviewed the R&R and the record de
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novo and concludes that the R & R is thorough and well-reasoned. It correctly concludes
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that Grounds One and Four of the Petition are procedurally defaulted and barred from
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review; Ground Two lacks merit; and Ground Three presents a claim not cognizable on
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federal habeas corpus review. The Court therefore adopts the R & R.
IT IS ORDERED accepting and adopting Magistrate Judge Burns’s Report and
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Recommendation (Doc. 18) as this Court’s findings of fact and conclusions of law.
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IT IS FURTHER ORDERED dismissing the Amended Petition for Writ of Habeas
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Corpus (Doc. 8) for the following reasons: Grounds One and Four are procedurally
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defaulted and barred from habeas corpus review; Ground Two lacks merit; and Ground
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Three presents a claim not cognizable on federal habeas corpus review.
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//
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//
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IT IS FURTHER ORDERED pursuant to Rule 11(a) of the Rules Governing
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Section 2254 Cases, that should Petitioner file an appeal, the Court declines to issue a
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certificate of appealability because reasonable jurists would not find the Court’s ruling
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debatable. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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IT IS FURTHER ORDERED that the Clerk of the Court shall close this case.
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Dated this 10th day of December, 2014.
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Honorable John J. Tuchi
United States District Judge
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