Alcantar #163442 v. Ryan et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 14 ) is accepted. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing petitioner' ;s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Docs. 1) with prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition and Amended Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Judge Neil V Wake on 06/03/15. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adam Alcantar,

No. CV-14-01221-PHX-NVW (MHB)
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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

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Magistrate Judge Michelle H. Burns (Doc. 14) issued April 30, 2015, regarding

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petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc.

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1). The R&R recommends that the Petition be denied and dismissed with prejudice. The

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Magistrate Judge advised the parties that they had fourteen days to file objections to the

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R&R. (R&R at 12 (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of

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Civil Procedure). No objections were filed.

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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 dismiss the Petition. See

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

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whole 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. 14) is accepted.

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

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and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

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§ 2254 (Docs. 1) with prejudice. 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 Petition and Amended Petition for a Writ of Habeas Corpus, the

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

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appeal are denied because dismissal of the petition is justified by a plain procedural bar

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and jurists of reason would not find the ruling debatable.

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Dated this 3rd day of June, 2015.

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Neil V. Wake
United States District Judge

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