Emden v. Waugh et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that Magistrate Judge Boyle's R&R (Doc. 18 ) is accepted and adopted as the order of this Court. The Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. [ 7]) is denied and dismissed with prejudice. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a 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 procedural ruling debatable. The Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 9/15/15. (KGM)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

David Jonathan Emden,
Petitioner,

10
11

ORDER

v.

12

No. CV-14-1301-PHX-DJH

Steve Waugh, et al.,

13

Respondents.

14
15
16

This matter is before the Court on Petitioner’s Amended Petition for Writ of

17

Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254 (Doc. 7) and the Report and

18

Recommendation (“R&R”) issued by United States Magistrate Judge John Z. Boyle

19

(Doc. 18). On July 13, 2011, Petitioner pled guilty in Yavapai County Superior Court,

20

pursuant to a plea agreement, to one count of aggravated assault pursuant to domestic

21

violence, one count of driving under the influence, and one count of disorderly conduct

22

pursuant to domestic violence. (Doc. 18 at 3). At the same hearing, the trial court

23

sentenced Petitioner to three years of supervised probation, the terms of which included

24

incarceration in the Yavapai County jail. (Id.). Petitioner subsequently violated the term

25

of his probation that prohibited him from consuming alcohol, admitting that he did so

26

repeatedly. (Doc. 18 at 4). At the disposition hearing on May 20, 2013, the trial court

27

revoked probation on all three counts and imposed a total sentence of 30 months in

28

prison. (Doc. 18 at 4).

1

Petitioner raised two claims for relief in the Petition, alleging that the sentences

2

imposed by the trial court after revoking his probation violated the Double Jeopardy

3

Clause, and claiming the sentences should have run concurrently rather than

4

consecutively. (Doc. 18 at 6). On March 2, 2015, Petitioner filed a notice of change of

5

address indicating that he had been released from custody. (Doc. 18 at 7). The address

6

he provided is a Post Office box in Lake Havasu City, Arizona. (Id.).

7

After full consideration and analysis of the issues, Judge Boyle concluded that the

8

Petition is moot because Petitioner has already received the only relief he was seeking,

9

release from custody. (Doc. 18 at 8).

10

Accordingly, Judge Boyle recommends the

Petition be denied and dismissed with prejudice. (Id.).

11

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

12

that the failure to file timely objections "may result in the acceptance of the Report and

13

Recommendation by the district court without further review." (Doc. 18 at 9) (citing

14

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The

15

parties have not filed objections and the time to do so has expired.

16

objections, the Court is not required to review the findings and recommendations in the

17

R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

18

Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

19

review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

20

F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

21

any part of the magistrate judge’s disposition that has been properly objected to.”).

Absent any

22

Nonetheless, the Court has reviewed the R&R and agrees with its findings and

23

recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

24

28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

25

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

26

Fed.R.Civ.P. 72(b)(3) (same).

27

Accordingly,

28

IT IS ORDERED that Magistrate Judge Boyle's R&R (Doc. 18) is accepted and

-2-

1
2
3

adopted as the order of this Court.
IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) is denied and dismissed with prejudice.

4

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

5

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

6

on appeal are denied because dismissal of the Petition is justified by a plain procedural

7

bar and jurists of reason would not find the procedural ruling debatable.

8
9
10

IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 15th day of September, 2015.

11
12
13
14

Honorable Diane J. Humetewa
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-