Garcia #230310 v. Ryan et al

Filing 19

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NOT FOR PUBLICATION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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