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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Darnell Cain,

No. CV-13-02011-PHX-DGC
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Darnell Cain filed a Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C. § 2013.

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James F. Metcalf issued a report and recommendation (“R&R”) recommending that the

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petition be dismissed with prejudice and that a Certificate of Appealability be denied.

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Doc. 12 at 15. On May 13, 2014, the Court accepted the R&R because Petitioner had

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filed no objections to the R&R. Doc. 13. The Court also denied a Certificate of

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Appealability. Id. On May 15, 2014, Petitioner filed a “Supplemental Brief.” Doc. 15.

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On May 22, 2014, Petitioner filed a motion urging the Court to reconsider the

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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

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Petitioner had 14 days to file objections to the R&R. Fed. R. Civ. P. 72(b)(2).

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The R&R was filed on March 28, 2014. Doc. 12. As of May 13, 2014 – more than 45

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days later – Petitioner had filed no objection. The Court accordingly approved the R&R.

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The R&R specifically warned Petitioner about the 14-day time limit and that

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“[f]ailure to timely file objections to any findings or recommendations . . . will be

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considered a waiver of a party’s right to de novo consideration of the issues.” Doc. 12 at

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

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Fed. R. Civ. P. 72, Advisory Comm. Notes, 1991 Am. (“[O]bjections to magistrate’s

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orders that are not timely made shall not be considered.”). The R&R further warned that

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such failure “will constitute a waiver of [Petitioner’s] right to appellate review of the

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findings of fact in an order or judgment entered pursuant to the [R&R].” Doc. 12 at 15;

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see Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Because Petitioner’s

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supplemental brief was filed well outside of the 14-day filing period, he has waived his

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right to review.

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Petitioner’s motion to reconsider provides no justification for his untimely

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objection to the R&R, but does note that Petitioner is untrained in the law. Petitioner’s

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lack of legal training does not, however, excuse his failure to comply with the clear time

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limit for objecting to the R&R. Meeks Junior v. Wells Fargo Bank, No. 2:13-cv-1261

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KJM DAD PS, 2014 WL 295171, at *1 (E.D. Cal. Jan. 27, 2014) (“Any individual

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representing himself or herself . . . is nonetheless bound by the Federal Rules of Civil

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Procedure, the Local Rules, and all applicable law.”).

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IT IS ORDERED that Petitioner’s motion to reconsider the supplemental brief
(Doc. 16) is denied.
Dated this 9th day of July, 2014.

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