Cain v. Ryan et al

Filing 21

ORDER that Petitioner's 16 Motion to Reconsider the Supplemental Brief is denied. Signed by Judge David G Campbell on 7/9/2014.(LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Darnell Cain, No. CV-13-02011-PHX-DGC Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 Petitioner Darnell Cain filed a Petition for Writ of Habeas Corpus pursuant to 28 16 U.S.C. § 2013. 17 James F. Metcalf issued a report and recommendation (“R&R”) recommending that the 18 petition be dismissed with prejudice and that a Certificate of Appealability be denied. 19 Doc. 12 at 15. On May 13, 2014, the Court accepted the R&R because Petitioner had 20 filed no objections to the R&R. Doc. 13. The Court also denied a Certificate of 21 Appealability. Id. On May 15, 2014, Petitioner filed a “Supplemental Brief.” Doc. 15. 22 On May 22, 2014, Petitioner filed a motion urging the Court to reconsider the 23 supplemental brief because it contained objections to the R&R. Doc. 16 at 1-2. Doc. 1. On March 28, 2014, United States Magistrate Judge 24 Petitioner had 14 days to file objections to the R&R. Fed. R. Civ. P. 72(b)(2). 25 The R&R was filed on March 28, 2014. Doc. 12. As of May 13, 2014 – more than 45 26 days later – Petitioner had filed no objection. The Court accordingly approved the R&R. 27 The R&R specifically warned Petitioner about the 14-day time limit and that 28 “[f]ailure to timely file objections to any findings or recommendations . . . will be 1 considered a waiver of a party’s right to de novo consideration of the issues.” Doc. 12 at 2 15; see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); 3 Fed. R. Civ. P. 72, Advisory Comm. Notes, 1991 Am. (“[O]bjections to magistrate’s 4 orders that are not timely made shall not be considered.”). The R&R further warned that 5 such failure “will constitute a waiver of [Petitioner’s] right to appellate review of the 6 findings of fact in an order or judgment entered pursuant to the [R&R].” Doc. 12 at 15; 7 see Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Because Petitioner’s 8 supplemental brief was filed well outside of the 14-day filing period, he has waived his 9 right to review. 10 Petitioner’s motion to reconsider provides no justification for his untimely 11 objection to the R&R, but does note that Petitioner is untrained in the law. Petitioner’s 12 lack of legal training does not, however, excuse his failure to comply with the clear time 13 limit for objecting to the R&R. Meeks Junior v. Wells Fargo Bank, No. 2:13-cv-1261 14 KJM DAD PS, 2014 WL 295171, at *1 (E.D. Cal. Jan. 27, 2014) (“Any individual 15 representing himself or herself . . . is nonetheless bound by the Federal Rules of Civil 16 Procedure, the Local Rules, and all applicable law.”). 17 18 19 IT IS ORDERED that Petitioner’s motion to reconsider the supplemental brief (Doc. 16) is denied. Dated this 9th day of July, 2014. 20 21 22 23 24 25 26 27 28 -2-

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