Zazueta-Miranda v. USA
ORDER the 13 Report and Recommendation of the Magistrate Judge is accepted. ORDERED the Clerk of the Court enter judgment denying Movant's 1 Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. The Clerk shall terminate this action. The Court finds that a Certificate of Appealability is DENIED. Signed by Judge Neil V Wake on 3/11/2015. (LFIG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. CV-14-0784-PHX-NVW (JFM)
United States of America,
Pending before the court is the Report and Recommendation (“R&R”) of
Magistrate Judge James F. Metcalf (Doc. 13) regarding Movant’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).
recommends that the Motion be denied. The Magistrate Judge advised the parties that
they had fourteen days to file objections to the R&R. (R&R at 22 (citing Rule 72(b),
Federal Rules of Civil Procedure and Rule 10, Rules Governing Section 2255
Proceedings). No 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 deny the Motion. 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 magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc.13) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
Movant’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255
(Doc. 1). The Clerk shall terminate this action.
Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by Person in Federal Custody, the Court FINDS: Certificate of Appealability is
DENIED. Petitioner has not made a substantial showing of the denial of a constitutional
right. See Rule 11(a), Rules Governing Section 2255 Cases in the United States District
Courts; 28 U.S.C. § 2253(c)(3).
Dated this 11th day of March, 2015.
Neil V. Wake
United States District Judge
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