Zunun-Morales v. USA

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATION - Magistrate Judge Fine's 5 Report and Recommendation is accepted and adopted by the Court. The 1 Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C . § 2255 is denied and this case is dismissed with prejudice and the Clerk shall terminate this action. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Movant has not made a substantial showing of the denial of a constitutional right. Signed by Judge Steven P Logan on 10/5/16. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff/Respondent, )
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vs.
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Ismael Zunun-Morales,
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Defendant/Movant. )
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United States of America,

No. CV-15-01599-PHX-SPL)
(No. CR-14-00863-PHX-SPL)
ORDER

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Movant Ismael Zunun-Morales has filed a Motion to Vacate, Set Aside, or Correct

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Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (“Motion”) (Doc.

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1). On September 2, 2016, the Honorable Deborah M. Fine, United States Magistrate

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Judge, issued a Report and Recommendation (“R&R”), recommending that the Court

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deny the Motion. Judge Fine advised the parties that they had fourteen (14) days to file

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objections to the R&R and that failure to file timely objections could be considered a

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waiver of the right to obtain review of the R&R. (Doc. 5 at 8-9); 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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The parties did not file objections, which relieves the Court of its obligation to

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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149

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(1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is

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not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-

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taken. The Court will adopt the R&R and deny the Motion. See 28 U.S.C. § 636(b)(1)

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(stating that the district court “may accept, reject, or modify, in whole or in part, the

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findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The

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district judge may accept, reject, or modify the recommended disposition; receive further

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evidence; or return the matter to the magistrate judge with instructions.”). Accordingly,

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IT IS ORDERED:

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1. That Magistrate Judge Fine’s Report and Recommendation (Doc. 5) is

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accepted and adopted by the Court;

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2. That the Motion to Vacate, Set Aside, or Correct Sentence by a Person in

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Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 1) is denied and this case is

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dismissed with prejudice;

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3. That a certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Movant has not made a substantial showing of the denial of a

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constitutional right;

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4. That the Clerk of Court shall file this Order in the underlying related criminal
action, Case No. CR-14-00863-PHX-SPL; and

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5. That the Clerk of Court shall terminate this action.

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Dated this 5th day of October, 2016.

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Honorable Steven P. Logan
United States District Judge

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