Martinez v. Ryan et al
Filing
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ORDER accepting 11 the Magistrate Judge's Report and Recommendation. Clerk of Court to enter judgment denying petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with prejudice. The Cle rk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition and Amended Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate 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 2/4/16. (EJA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Juan Ulises Martinez,
Petitioner,
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ORDER
v.
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No. CV-15-01636-PHX-NVW (BSB)
Charles L. Ryan, 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 Bridget S. Bade (Doc. 11) issued January 6, 2016, regarding
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petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc.
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1). The R&R recommends that the Petition be denied as untimely. The Magistrate Judge
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advised the parties that they had fourteen days to file objections to the R&R. (R&R at 11
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(citing 28 U.S.C. § 636(b)(1); Rules 6, 72, Federal Rules of Civil Procedure). No
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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 deny the Petition. See 28
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U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole
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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. 11) is accepted.
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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
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petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc.
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1) with prejudice. The Clerk shall terminate this action.
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Having considered the issuance of a Certificate of Appealability from the order
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denying Petitioner’s Petition and Amended Petition for a Writ of Habeas Corpus, the
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Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on
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appeal are denied because dismissal of the petition is justified by a plain procedural bar
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and jurists of reason would not find the procedural ruling debatable.
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Dated this 4th day of February, 2016.
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Neil V. Wake
United States District Judge
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