Severance v. Kaiser et al

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 21 ) is accepted. IT IS FURTHER ORDERED granting Respondent's Motion to Dismiss (Doc. 18 ), and dismissing petitioner 9;s Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10 ) without prejudice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability, the Court FINDS: Certifi cate 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 procedural ruling debatable. Signed by Judge Neil V Wake on 3/9/16. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dale Allen Severance,
Petitioner,

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ORDER

v.

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No. CV-15-01194-PHX-NVW (ESW)

Brian D. Kaiser, et al.,

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Respondents.

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Pending before the court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Eileen S. Willett (Doc. 21) issued February 9, 2016, regarding

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petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. §

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2254 (Doc. 10) and Respondents’ Motion to Dismiss Habeas Petition for Failure to

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Exhaust Any Claim (Doc. 18). The Court ordered that a response to the Motion to

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Dismiss shall be filed no later than February 1, 2016 (Doc. 19). No response was filed.

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The R&R recommends that the Amended Petition be dismissed without prejudice.

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The Magistrate Judge advised the parties that they had fourteen days to file objections to

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the R&R. (R&R at 4 citing Rule 72(b), Fed. R. Civ. P.). 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

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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

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timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.

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1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).

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Notwithstanding the absence of an objection, the court has reviewed the R&R and

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finds that it is well taken. The court will accept the R&R and dismiss the Amended

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Petition. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or

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modify, in whole or in part, the findings or recommendations made by the magistrate”).

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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 21) is accepted.

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IT IS FURTHER ORDERED granting Respondent’s Motion to Dismiss (Doc. 18).

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IT IS FURTHER ORDERED dismissing petitioner’s Amended Petition for Writ

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of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 10) without prejudice. The

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Clerk shall terminate this action.

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Having considered the issuance of a Certificate of Appealability, the Court

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FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal

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are denied because dismissal of the petition is justified by a plain procedural bar and

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jurists of reason would not find the procedural ruling debatable.

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Dated this 9th day of March, 2016.

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Neil V. Wake
United States District Judge

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