Reyes v. Graber
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 13 - IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE the Petition Under 28 U.S.C. 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1 );IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Diane J Humetewa on 2/19/15. (LAD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
This matter is before the Court on Petitioner’s Petition Under 28 U.S.C. § 2241 for
a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), and the Report and
Recommendation (“R&R”) issued on January 28, 2015, by United States Magistrate
Judge James F. Metcalf (Doc. 13). Since the filing of his Petition, Petitioner has received
the relief he sought therein, i.e., he has been deemed eligible for early release
consideration under 18 U.S.C. § 3621(e). Therefore, in its response to the Petition, the
Respondent sought dismissal of the Petition due to lack of subject matter jurisdiction
based upon mootness. Petitioner was allowed to file a reply, but he did not. See R & R
(Doc. 13) at 3:2-4.
Agreeing with the Respondent, Magistrate Judge Metcalf correctly found that this
Petition is moot and hence subject matter jurisdiction is lacking. See R & R (Doc. 13) at
3:6 – 4:14. The Magistrate Judge therefore recommended dismissing the Petition without
recommendation as to a Certificate of Appealability because "[t]his case arises under 28
(Id. at 4:27–5:1).
The Magistrate Judge also correctly made no
U.S.C. § 2241, and does not attack a State court detention." (Id. at 4:22-23).
The parties have not filed any objections to the R&R and the time to do so has
expired. Absent any objections, the Court is not required to review the findings and
recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The
relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on
its face require any review at all . . . of any issue that is not the subject of an objection.”);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); Fed.R.Civ.P.
72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”).
Nonetheless, the Court has reviewed the R&R and agrees with its
recommendation. The Court will, therefore, accept the R&R, and dismiss the Petition as
moot and without prejudice. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).
IT IS ORDERED ACCEPTING AND ADOPTING as an Order of this Court
Magistrate Judge Metcalf's R&R (Doc. 13);
IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE the
Petition Under 28 U.S.C. 2241 for a Writ of Habeas Corpus by a Person in Federal
Custody (Doc. 1);
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 19th day of February, 2015.
Honorable Diane J. Humetewa
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?