Vasquez #211739 v. Ryan et al
ORDER ADOPTING 15 Report and Recommendation of the Magistrate Judge. Clerk of the Court shall enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with prej udice. 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 is denied because dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge Neil V Wake on 10/27/15. (EJA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jose Omar Vasquez,
No. CV-15-0058-PHX-NVW (JFM)
Charles L. Ryan, et al.,
Pending before the court is the Report and Recommendation (“R&R”) of
Magistrate Judge James F. Metcalf (Doc. 15) issued September 21, 2015, 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 13 (citing Rules 72(b) Federal Rules of Civil Procedure and Rule 8(b),
Rules Governing Section 2254 Proceedings). No 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. 15) 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 is denied because dismissal of the petition is justified by a plain
procedural bar and jurists of reason would not find the procedural ruling debatable.
Dated this 27th day of October, 2015.
Neil V. Wake
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?