Urtusuastegui v. Ryan et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION, the Report and Recommendation of the Magistrate Judge 8 is accepted; the Clerk shall enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus 1 with prejudice; the Clerk shall terminate this action; a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of Ground Two is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right in Grounds One or Two. Signed by Judge Neil V Wake on 7/31/14. (REW)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Demetrio Acosta Urtusuastegui, Petitioner, 10 11 ORDER v. 12 No. CV-13-02110-PHX-NVW Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the court is the Report and Recommendation (“R&R”) of 16 Magistrate Judge Bridget S. Bade (Doc. 8) regarding petitioner’s Petition for Writ of 17 Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that 18 the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the 19 parties that they had fourteen days to file objections to the R&R. (R&R at 33 (citing Rule 20 8(b), Rules Governing Section 2254 Proceedings). No objections were filed. 21 Because the parties did not file objections, the court need not review any of the 22 Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); 23 Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 24 Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any 25 review at all . . . of any issue that is not the subject of an objection.”). The absence of a 26 timely objection also means that error may not be assigned on appeal to any defect in the 27 rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A 28 party may serve and file objections to the order within 14 days after being served with a 1 copy [of the magistrate’s order]. A party may not assign as error a defect in the order not 2 timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 3 1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002). 4 Notwithstanding the absence of an objection, the court has reviewed the R&R and 5 finds that it is well taken. The court will accept the R&R and dismiss the Petition. See 6 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in 7 whole or in part, the findings or recommendations made by the magistrate”). 8 9 IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 8) is accepted. 10 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 11 and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 12 § 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action. 13 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 14 proceed in forma pauperis on appeal be DENIED because the dismissal of Ground Two 15 is justified by a plain procedural bar and reasonable jurists would not find the procedural 16 ruling debatable, and because Petitioner has not made a substantial showing of the denial 17 of a constitutional right in Grounds One or Two. 18 Dated this 31st day of July, 2014. 19 20 21 22 23 24 25 26 27 28 -2-

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