Weber #153979 v. Ryan et al

Filing 18

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)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Kevin Lee Weber,

No. CV-14-00317-PHX-NVW (DKD)
Petitioner,

10
11

v.

12

ORDER

Charles L. Ryan, et al.,

13

Respondents.

14
15

Pending before the court is the Report and Recommendation (“R&R”) of

16

Magistrate Judge David K. Duncan (Doc. 17) issued April 15, 2015, regarding

17

petitioner’s Petition and Amended Petition for Writ of Habeas Corpus filed pursuant to

18

28 U.S.C. § 2254 (Docs. 1, 8). The R&R recommends that the Petition and Amended

19

Petition be denied and dismissed with prejudice. The Magistrate Judge advised the

20

parties that they had fourteen days to file objections to the R&R. (R&R at 6 (citing 28

21

U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure).

22

objections were filed.

No

23

Because the parties did not file objections, the court need not review any of the

24

Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);

25

Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

26

Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

27

review at all . . . of any issue that is not the subject of an objection.”). The absence of a

28

timely objection also means that error may not be assigned on appeal to any defect in the

1

rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A

2

party may serve and file objections to the order within 14 days after being served with a

3

copy [of the magistrate’s order]. A party may not assign as error a defect in the order not

4

timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.

5

1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).

6

Notwithstanding the absence of an objection, the court has reviewed the R&R and

7

finds that it is well taken. The court will accept the R&R and dismiss the Petition and

8

Amended Petition. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept,

9

reject, or modify, in whole or in part, the findings or recommendations made by the

10
11
12

magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 17) is accepted.

13

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

14

and dismissing petitioner's Petition and Amended Petition for Writ of Habeas Corpus

15

filed pursuant to 28 U.S.C. § 2254 (Docs. 1, 8) with prejudice. The Clerk shall terminate

16

this action.

17

Having considered the issuance of a Certificate of Appealability from the order

18

denying Petitioner’s Petition and Amended Petition for a Writ of Habeas Corpus, the

19

Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on

20

appeal are denied because dismissal of the petition and amended petition are justified by

21

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

22

Dated this 15th day of May, 2015.

23
24
25

Neil V. Wake
United States District Judge

26
27
28

-2-