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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Johnny David Cato, Petitioner, 10 11 ORDER v. 12 No. CV-15-01804-PHX-JAT Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court is a Report and Recommendation recommending that: 1) 16 the Court deny Petitioner’s request to stay this case while he exhausts further claims in 17 state court, and 2) the Court grant Petitioner’s request to voluntarily dismiss his mixed 18 petition. 19 Recommendation. (Doc. 26). Neither party has filed objections to the Report and 20 This Court previously warned Petitioner that voluntarily dismissing his petition 21 might cause his claims in this petition to be time barred if he tries to bring them again 22 later. (Doc. 20). Petitioner nonetheless has decided this is the course he is choosing to 23 take. 24 Given that there are no objections to the Report and Recommendation,1 25 1 26 27 28 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 1 IT IS ORDERED that the Report and Recommendation (Doc. 26) is accepted and 2 adopted. As a result, the motion to stay (Doc. 25) is denied. The Petition is dismissed, 3 without prejudice, and the Clerk of the Court shall enter judgment accordingly. 4 IT IS FURTHER ORDERED that a certificate of appealability is denied. 5 Dated this 7th day of February, 2017. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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.”). -2-

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