Reyes v. Graber

Filing 14

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Reyes,

No. CV-14-01866-PHX-DJH
Petitioner,

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v.

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ORDER

Conrad Graber,

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Respondent.

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This matter is before the Court on Petitioner’s Petition Under 28 U.S.C. § 2241 for

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a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), and the Report and

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Recommendation (“R&R”) issued on January 28, 2015, by United States Magistrate

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Judge James F. Metcalf (Doc. 13). Since the filing of his Petition, Petitioner has received

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the relief he sought therein, i.e., he has been deemed eligible for early release

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consideration under 18 U.S.C. § 3621(e). Therefore, in its response to the Petition, the

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Respondent sought dismissal of the Petition due to lack of subject matter jurisdiction

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based upon mootness. Petitioner was allowed to file a reply, but he did not. See R & R

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(Doc. 13) at 3:2-4.

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Agreeing with the Respondent, Magistrate Judge Metcalf correctly found that this

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Petition is moot and hence subject matter jurisdiction is lacking. See R & R (Doc. 13) at

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3:6 – 4:14. The Magistrate Judge therefore recommended dismissing the Petition without

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prejudice.

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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

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U.S.C. § 2241, and does not attack a State court detention." (Id. at 4:22-23).

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The parties have not filed any objections to the R&R and the time to do so has

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expired. Absent any objections, the Court is not required to review the findings and

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recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The

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relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on

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its face require any review at all . . . of any issue that is not the subject of an objection.”);

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); Fed.R.Civ.P.

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72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to.”).

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

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recommendation. The Court will, therefore, accept the R&R, and dismiss the Petition as

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moot and without prejudice. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED ACCEPTING AND ADOPTING as an Order of this Court

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Magistrate Judge Metcalf's R&R (Doc. 13);

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IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE the

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Petition Under 28 U.S.C. 2241 for a Writ of Habeas Corpus by a Person in Federal

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Custody (Doc. 1);

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 19th day of February, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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