Cato #199166 v. Ryan et al

Filing 27

ORDER: The Report and Recommendation (Doc. 26 ) is accepted and adopted. As a result, the motion to stay (Doc. 25 ) is denied. The Petition is dismissed, without prejudice, and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability is denied. Signed by Senior Judge James A Teilborg on 2/07/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Johnny David Cato,
Petitioner,

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ORDER

v.

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No. CV-15-01804-PHX-JAT

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation recommending that: 1)

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the Court deny Petitioner’s request to stay this case while he exhausts further claims in

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state court, and 2) the Court grant Petitioner’s request to voluntarily dismiss his mixed

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petition.

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Recommendation.

(Doc. 26).

Neither party has filed objections to the Report and

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This Court previously warned Petitioner that voluntarily dismissing his petition

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might cause his claims in this petition to be time barred if he tries to bring them again

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later. (Doc. 20). Petitioner nonetheless has decided this is the course he is choosing to

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take.

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Given that there are no objections to the Report and Recommendation,1

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This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that
the district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes
that de novo review of factual and legal issues is required if objections are made, ‘but not

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IT IS ORDERED that the Report and Recommendation (Doc. 26) is accepted and

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adopted. As a result, the motion to stay (Doc. 25) is denied. The Petition is dismissed,

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without prejudice, and the Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is denied.

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Dated this 7th day of February, 2017.

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otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the
[Magistrate Judge=s] recommendations to which the parties object.”). District courts are
not required to conduct “any review at all . . . of any issue that is not the subject of an
objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28
U.S.C. ' 636(b)(1) (“the court shall make a de novo determination of those portions of
the [report and recommendation] to which objection is made.”).

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