Foose v. Arizona, State of et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 18 . Petitioners Second Amended Petition for Writ of Habeas Corpus 10 is denied and dismissed with prejudice. Petitioners Motion for Ruling 17 is moot. The Clerk shall terminate this action and enter jud gment accordingly. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Courts procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Signed by Judge G Murray Snow on 5/26/2015. (ACL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward Micheal Foose,
Petitioner,

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ORDER

v.

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No. CV-14-00787-PHX-GMS

Attorney General of the State of Arizona, et
al.,

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Respondents.

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Pending before the Court are Petitioner’s Second Amended Petition for Writ of

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Habeas Corpus and United States Magistrate Judge Michelle H. Burns’s Report and

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Recommendation (“R&R”). Docs. 10, 18. The R&R recommends that the Court deny

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the Petition and dismiss with prejudice. Doc. 18 at 16. The Magistrate Judge advised the

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parties that they had fourteen days to file objections to the R&R and that failure to file

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timely objections could be considered a waiver of the right to obtain review of the R&R.

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Id. at 16 (citing Fed. R. Civ. P. 72, 6(a), 6(b); United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003)).

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The parties did not file objections, which relieves the Court of its obligation to

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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149

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(1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is

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not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-

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taken. The Court will accept the R&R and deny the Second Amended Petition and

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dismiss with prejudice. See 28 U.S.C. § 636(b)(1) (stating that the district court “may

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

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the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions.”).

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IT IS ORDERED:

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Magistrate Judge Burns’s R&R (Doc. 18) is accepted.

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Petitioner’s Second Amended Petition for Writ of Habeas Corpus (Doc. 10)

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is denied and dismissed with prejudice.

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3.

Petitioner’s Motion for Ruling (Doc. 17) is moot.

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The Clerk of Court shall terminate this action and enter judgment

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accordingly.
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Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the

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event Petitioner files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 26th day of May, 2015.

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Honorable G. Murray Snow
United States District Judge

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