Vos #230237 v. Ryan et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Robert Johannes Jonge Vos,
Charles L. Ryan, et al.,
This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)
issued by United States Magistrate Judge David K. Duncan (Doc. 18). Pursuant to plea
agreements, Petitioner pled guilty to and was convicted of one count of sexual
exploitation of a minor and one count of attempted sexual exploitation of a minor. (Doc.
18 at 2). He was sentenced to 17 years in prison on the first conviction and lifetime
probation on the second. (Id.). He raised three grounds for relief in the Petition,
including ineffective assistance of counsel, lack of subject matter jurisdiction, and
prosecutorial misconduct. (Doc. 18 at 3). After consideration of the issues, Judge
Duncan concluded that the Petitioner's claims are procedurally barred because he failed to
fairly present them to the Arizona Court of Appeals. (Doc. 18 at 4-6). Accordingly,
Judge Duncan recommends the Petition be dismissed with prejudice. (Doc. 18 at 6).
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
Recommendation by the district court without further review." (Doc. 18 at 7) (citing
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The
parties have not filed objections and the time to do so has expired. Absent any
objections, the Court is not required to review the findings and recommendations in the
R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the
Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any
review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328
F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.”).
Nonetheless, the Court has reviewed the R&R and agrees with its findings and
recommendations. The Court will, therefore, accept the R&R and deny the Petition. See
28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.”);
Fed.R.Civ.P. 72(b)(3) (same). Accordingly,
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.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, 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.
IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 22nd day of May, 2015.
Honorable Diane J. Humetewa
United States District Judge
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