Zazueta-Miranda v. USA

Filing 14

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Arnoldo Zazueta-Miranda,

No. CV-14-0784-PHX-NVW (JFM)
CR-09-1509-PHX-NVW

Movant/Defendant,

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ORDER

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vs.

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United States of America,

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Respondent/Plaintiff.

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

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Magistrate Judge James F. Metcalf (Doc. 13) regarding Movant’s Motion to Vacate, Set

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Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).

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recommends that the Motion be denied. The Magistrate Judge advised the parties that

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they had fourteen days to file objections to the R&R. (R&R at 22 (citing Rule 72(b),

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Federal Rules of Civil Procedure and Rule 10, Rules Governing Section 2255

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Proceedings). No objections were filed.

The R&R

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

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

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

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

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

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

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

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

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

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

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

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

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finds that it is well taken. The court will accept the R&R and deny the Motion. See 28

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

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

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc.13) is accepted.

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

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Movant’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255

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(Doc. 1). The Clerk shall terminate this action.

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

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denying Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct

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Sentence by Person in Federal Custody, the Court FINDS: Certificate of Appealability is

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DENIED. Petitioner has not made a substantial showing of the denial of a constitutional

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right. See Rule 11(a), Rules Governing Section 2255 Cases in the United States District

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Courts; 28 U.S.C. § 2253(c)(3).

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Dated this 11th day of March, 2015.

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Neil V. Wake
United States District Judge

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