Pita-Mota v. USA

Filing 7

ORDER ACCEPTING 6 Magistrate Judge Burns' Report and Recommendation. Petitioner's Motion to Vacate, Set Aside or Correct Sentence (Doc. 1 ) is denied and dismissed with prejudice. The Clerk shall terminate this action. Pursuant to Rule 11(a) of the Rules Governing Section 2255 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 12/5/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Luis Pita-Mota,

No. CV-13-02141-PHX-GMS
Petitioner,

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v.

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No. CR-09-1114-PHX-GMS

USA,

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ORDER

Respondent.

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Pending before the Court are Petitioner’s Motion to Vacate, Set Aside or Correct

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Sentence by a Person in Federal Custody and United States Magistrate Judge Michelle H.

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Burns’ Report and Recommendation (“R&R”). Docs. 1, 6. The R&R recommends that

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the Court deny the Motion and dismiss with prejudice. Doc. 6 at 6. The Magistrate

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Judge advised the parties that they had fourteen days to file objections to the R&R and

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that failure to file timely objections could be considered a waiver of the right to obtain

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review of the R&R. Id. at 6 (citing Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003)).

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The parties did not file objections, which relieves the Court of its obligation to

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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149

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(1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is

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not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-

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taken. The Court will accept the R&R and deny the Motion and dismiss with prejudice.

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See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate”); Fed. R. Civ.

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P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended

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disposition; receive further evidence; or return the matter to the magistrate judge with

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instructions.”).

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IT IS ORDERED:

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Magistrate Judge Burns’ R&R (Doc. 6) is accepted.

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2.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is

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denied and dismissed with prejudice.

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3.

The Clerk of Court shall terminate this action.

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4.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Petitioner files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 5th day of December, 2014.

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