Vos #230237 v. Ryan et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION, Magistrate Judge Duncan's Report and Recommendation 18 is accepted and adopted as the order of this Court; the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 is denied and dis missed with prejudice; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable; the Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 5/22/15. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Johannes Jonge Vos,
Petitioner,

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ORDER

v.

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No. CV-13-01891-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge David K. Duncan (Doc. 18). Pursuant to plea

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agreements, Petitioner pled guilty to and was convicted of one count of sexual

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exploitation of a minor and one count of attempted sexual exploitation of a minor. (Doc.

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18 at 2). He was sentenced to 17 years in prison on the first conviction and lifetime

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probation on the second. (Id.). He raised three grounds for relief in the Petition,

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including ineffective assistance of counsel, lack of subject matter jurisdiction, and

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prosecutorial misconduct. (Doc. 18 at 3). After consideration of the issues, Judge

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Duncan concluded that the Petitioner's claims are procedurally barred because he failed to

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fairly present them to the Arizona Court of Appeals. (Doc. 18 at 4-6). Accordingly,

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Judge Duncan recommends the Petition be dismissed with prejudice. (Doc. 18 at 6).

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Judge Duncan advised the parties that they had fourteen days to file objections and
that the failure to file timely objections "may result in the acceptance of the Report and

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Recommendation by the district court without further review." (Doc. 18 at 7) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The

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parties have not filed objections and the time to do so has expired. Absent any

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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

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Fed.R.Civ.P. 72(b)(3) (same). Accordingly,

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IT IS ORDERED that Magistrate Judge Duncan's R&R (Doc. 18) is accepted
and adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because dismissal of the Petition is justified by a plain procedural

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bar and jurists of reason would not find the procedural ruling debatable.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 22nd day of May, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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