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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Adam Alcantar, No. CV-14-01221-PHX-NVW (MHB) Petitioner, 10 11 v. 12 ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 Pending before the court is the Report and Recommendation (“R&R”) of 16 Magistrate Judge Michelle H. Burns (Doc. 14) issued April 30, 2015, regarding 17 petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 18 1). The R&R recommends that the Petition be denied and dismissed with prejudice. The 19 Magistrate Judge advised the parties that they had fourteen days to file objections to the 20 R&R. (R&R at 12 (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of 21 Civil Procedure). No objections were filed. 22 Because the parties did not file objections, the court need not review any of the 23 Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); 24 Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 25 Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any 26 review at all . . . of any issue that is not the subject of an objection.”). The absence of a 27 timely objection also means that error may not be assigned on appeal to any defect in the 28 rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A 1 party may serve and file objections to the order within 14 days after being served with a 2 copy [of the magistrate’s order]. A party may not assign as error a defect in the order not 3 timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 4 1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002). 5 Notwithstanding the absence of an objection, the court has reviewed the R&R and 6 finds that it is well taken. The court will accept the R&R and dismiss the Petition. See 7 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in 8 whole or in part, the findings or recommendations made by the magistrate”). 9 10 IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 14) is accepted. 11 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying 12 and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. 13 § 2254 (Docs. 1) with prejudice. The Clerk shall terminate this action. 14 Having considered the issuance of a Certificate of Appealability from the order 15 denying Petitioner’s Petition and Amended Petition for a Writ of Habeas Corpus, the 16 Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on 17 appeal are denied because dismissal of the petition is justified by a plain procedural bar 18 and jurists of reason would not find the ruling debatable. 19 Dated this 3rd day of June, 2015. 20 21 22 Neil V. Wake United States District Judge 23 24 25 26 27 28 -2-

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