Lopez-Mejia v. USA, et al

Filing 21

ORDER - Magistrate Judge Willett's R&R (Doc. 20 ) is accepted. Respondent's Motion to Strike or Dismiss Second Amended Motion (Doc. 19 ) is granted and the Clerk is directed to strike the Motion (Doc. 18 ). Petitioner's (First) Ame nded Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 7 ) and also filed in CR-09-01145 (Doc. 583) are denied and dismissed with prejudice. Pursuant to Rule 11(a) of the Rules Governi ng Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Signed by Judge G Murray Snow on 06/30/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jorge Daniel Lopez-Mejia,
Petitioner,

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USA, et al.,

No. CR-09-01145-PHX-GMS

v.

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No. CV-14-00841-PHX-GMS

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ORDER
Respondents.

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Pending before the Court are Petitioner’s (First) Amended Motion Under 28

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U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

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and United States Magistrate Judge Eileen S. Willett’s Report and Recommendation

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(“R&R”) filed in the above referenced caption. Docs. 7, 20. The R&R recommends that

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the Court [grant the Motion to Strike and deny the First Amended Motion to Vacate

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and dismiss with prejudice]. Doc. 20 at 9-10. The Magistrate Judge advised the parties

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

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

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10 (citing 28 U.S.C. § 28 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia,

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328 F.3d 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[, grant the Motion to Strike and deny the First

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Amended Motion to Vacate and dismiss with prejudice]. See 28 U.S.C. § 36(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The

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district judge may accept, reject, or modify the recommended disposition; receive further

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evidence; or return the matter to the magistrate judge with instructions.”).

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IT IS ORDERED:

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Magistrate Judge Willett’s R&R (Doc. 20) is accepted.

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2.

Respondent’s Motion to Strike or Dismiss Second Amended Motion (Doc.

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19) is granted and the Clerk of Court is directed to strike the Motion (Doc. 18).
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Petitioner’s (First) Amended Motion Under 28 U.S.C. § 2255 to Vacate,

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Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 7) and also filed in

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CR-09-01145 (Doc. 583) are denied and dismissed with prejudice.

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4.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Movant 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 30th day of June, 2015.

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Honorable G. Murray Snow
United States District Judge

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