Castillo-Rodriguez v. USA

Filing 14

ORDER ADOPTING 13 Amended Report and Recommendation of the Magistrate Judge. The Clerk shall enter judgment denying Petitioner's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 4 ). The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by Person in Federal Custody, the Court FINDS: that a Certificate of Appealability and leave to proceed in forma pauperis is DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 9/18/15. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Juan Jose Castillo-Rodriguez,

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No. CV-14-2808-PHX-NVW (DKD)
CR-13-0254-PHX-NVW

Petitioner,

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vs.

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United States of America,

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ORDER
Respondent.
Pending before the court is the Amended Report and Recommendation (“R&R”)

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of Magistrate Judge David K. Duncan (Doc. 13) regarding Petitioner’s Amended Motion

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to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 4). The

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R&R recommends that the Motion be denied. The Magistrate Judge advised the parties

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that they had fourteen days to file objections to the R&R. (R&R at 4 (citing Rule 72,

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6(a), 6(b), Federal Rules of Civil Procedure). No objections were filed.

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Because the parties did not file objections, the court need not review any of the

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Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

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Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

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review at all . . . of any issue that is not the subject of an objection.”). The absence of a

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timely objection also means that error may not be assigned on appeal to any defect in the

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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

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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 Amended
R&R and finds that it is well taken. The court will accept the Amended R&R and deny
the Amended Motion. 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 Amended Report and Recommendation of
the Magistrate Judge (Doc.13) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
Petitioner’s Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255 (Doc. 4). The Clerk shall terminate this action.
Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by Person in Federal Custody, the Court FINDS:

that a Certificate of

Appealability and leave to proceed in forma pauperis is DENIED because Petitioner has
not made a substantial showing of the denial of a constitutional right. See Rule 11(a),
Rules Governing Section 2255 Cases in the United States District Courts; 28 U.S.C. §
2253(c)(3).
Dated this 18th day of September, 2015.

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Neil V. Wake
United States District Judge

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