Kelley v. Ryan et al
ORDER ADOPTING REPORT AND RECOMMENDATION, the Report and Recommendation 11 is accepted; the Clerk shall enter judgment denying and dismissing Petitioner's Petition for Writ of Habeas Corpus 1 with prejudice; the Clerk shall terminate this ac tion; the Court finds that 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 ruling debatable. Signed by Judge Neil V Wake on 5/7/15. (REW)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Tracy Eugene Kelley,
No. CV-14-01610-PHX-NVW (DKD)
Charles L. Ryan, et al.,
Pending before the court is the Report and Recommendation (“R&R”) of
Magistrate Judge David K. Duncan (Doc. 11) regarding petitioner’s Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that
the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the
parties that they had fourteen days to file objections to the R&R. (R&R at 5 (citing 28
U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure).
objections were filed.
Because the parties did not file objections, the court need not review any of the
Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);
Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any
review at all . . . of any issue that is not the subject of an objection.”). The absence of a
timely objection also means that error may not be assigned on appeal to any defect in the
rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A
party may serve and file objections to the order within 14 days after being served with a
copy [of the magistrate’s order]. A party may not assign as error a defect in the order not
timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.
1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).
Notwithstanding the absence of an objection, the court has reviewed the R&R and
finds that it is well taken. The court will accept the R&R and dismiss the Petition. See
28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 11) 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 (Doc. 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 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.
Dated this 7th day of May, 2015.
Neil V. Wake
United States District Judge
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