Lewis v. Schroder et al

Filing 36

ORDER the 35 Report and Recommendation is accepted and adopted as the order of this Court. ORDERED the 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied and dismissed with prejudice. ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied. IT IS FURTHER ORDERED the Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 12/2/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carlos Devon Lewis,
Petitioner,

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ORDER

v.

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No. CV-13-02339-PHX-DJH

Teresa Schroder, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge James F. Metcalf (Doc. 35). Following a jury

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trial, Petitioner was convicted of automobile theft, unlawful flight and criminal damage.

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(Doc. 35 at 3). He raised four grounds for relief in the Petition. (Doc. 35 at 6). After a

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thorough analysis, Judge Metcalf concluded that the Petition is untimely and therefore

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barred by the statute of limitations. (Doc. 35 at 28). Accordingly, Judge Metcalf

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recommends the Petition be dismissed with prejudice. (Doc. 35 at 29-30).

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

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that the failure to file timely objections “will be considered a waiver of a party’s right to

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de novo consideration of the issues.” (Doc. 35 at 30) (citing Fed. R. Civ. P. 72(b) and

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

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parties have not filed objections and the time to do so has expired.

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objections, the Court is not required to review the findings and recommendations in the

Absent any

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.”);

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Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Metcalf's R&R (Doc. 35) is accepted

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and adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because dismissal of the Petition is justified by a plain procedural

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bar and jurists of reason would not find the procedural ruling debatable.

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 2nd day of December, 2014.

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Honorable Diane J. Humetewa
United States District Judge

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