Gallagher v. Ryan et al

Filing 14

ORDER ADOPTING 13 Magistrate Judge Aspey's Report and Recommendation. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is denied and dismissed with prejudice. The Clerk shall terminate this action and enter judgment. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Courts procedural ruling debatable. Signed by Judge G Murray Snow on 5/9/14. (LSP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Francis Gallagher, Petitioner, 10 11 ORDER v. 12 No. CV-13-02058-PHX-GMS Charles L. Ryan, et al., 13 Respondents. 14 Pending before the Court are Petitioner’s Petition for Writ of Habeas Corpus and 15 United States Magistrate Judge Mark E. Aspey’s Report and Recommendation (“R&R”). 16 Docs. 1, 13. The R&R recommends that the Court deny the Petition. Doc. 13 at 10. The 17 Magistrate Judge advised the parties that they had fourteen days to file objections to the 18 R&R and that failure to file timely objections could be considered a waiver of the right to 19 obtain review of the R&R. Id. at 11 (citing Fed. R. Civ. P. 72(b); United States v. Reyna- 20 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). 21 The parties did not file objections, which relieves the Court of its obligation to 22 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 23 (1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is 24 not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must 25 determine de novo any part of the magistrate judge’s disposition that has been properly 26 objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well- 27 taken. The Court will accept the R&R and deny the Petition. See 28 U.S.C. § 636(b)(1) 28 (stating that the district court “may accept, reject, or modify, in whole or in part, the 1 findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The 2 district judge may accept, reject, or modify the recommended disposition; receive further 3 evidence; or return the matter to the magistrate judge with instructions.”). 4 IT IS ORDERED: 5 1. Magistrate Judge Aspey’s R&R (Doc. 13) is accepted. 6 2. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is denied and 7 8 9 10 dismissed with prejudice. 3. The Clerk of Court shall terminate this action and enter judgment accordingly. 4. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 11 event Petitioner files an appeal, the Court declines to issue a certificate of appealability 12 because reasonable jurists would not find the Court’s procedural ruling debatable. See 13 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 14 Dated this 9th day of May, 2014. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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