Weber #153979 v. Ryan et al
ORDER that Report and Recommendation of the Magistrate Judge 17 is accepted. IT IS FURTHER ORDERED that the Clerk enter judgment denying and dismissing petitioner's Petition and Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 1 8 with prejudice. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 5/15/2015. (ACL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kevin Lee Weber,
No. CV-14-00317-PHX-NVW (DKD)
Charles L. Ryan, et al.,
Pending before the court is the Report and Recommendation (“R&R”) of
Magistrate Judge David K. Duncan (Doc. 17) issued April 15, 2015, regarding
petitioner’s Petition and Amended Petition for Writ of Habeas Corpus filed pursuant to
28 U.S.C. § 2254 (Docs. 1, 8). The R&R recommends that the Petition and Amended
Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
parties that they had fourteen days to file objections to the R&R. (R&R at 6 (citing 28
U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure).
objections were filed.
Because the parties did not file objections, the court need not review any of the
Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);
Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any
review at all . . . of any issue that is not the subject of an objection.”). The absence of a
timely objection also means that error may not be assigned on appeal to any defect in the
rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A
party may serve and file objections to the order within 14 days after being served with a
copy [of the magistrate’s order]. A party may not assign as error a defect in the order not
timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.
1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).
Notwithstanding the absence of an objection, the court has reviewed the R&R and
finds that it is well taken. The court will accept the R&R and dismiss the Petition and
Amended Petition. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 17) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
and dismissing petitioner's Petition and Amended Petition for Writ of Habeas Corpus
filed pursuant to 28 U.S.C. § 2254 (Docs. 1, 8) with prejudice. The Clerk shall terminate
Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Petition and Amended Petition for a Writ of Habeas Corpus, the
Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on
appeal are denied because dismissal of the petition and amended petition are justified by
a plain procedural bar and jurists of reason would not find the ruling debatable.
Dated this 15th day of May, 2015.
Neil V. Wake
United States District Judge
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