Mesidor v. Tracey

Filing 15

ORDER: IT IS ORDERED that Magistrate Judge Fine's R&R (Doc. 14 ) is ACCEPTED and ADOPTED as an Order of this Court. IT IS FURTHER ORDERED DENYING and DISMISSING the Petition for Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1 ); that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal Petitioner has not made a substantial showing of the denial of a constitutional right; the Clerk of Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 10/17/2016. (REK)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Valantin Mesidor,
Petitioner,

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ORDER

v.

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No. CV-15-02260-PHX-DJH

K. Tracey,

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Respondent.

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This matter is before the Court on pro se Petitioner’s Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) and the Report and Recommendation

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(“R&R”) (Doc. 14) of United States Magistrate Judge Deborah M. Fine, filed on

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September 7, 2016. Petitioner’s only ground for relief was “that the Bureau of Prisons

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failed to credit his sentence with the correct amount of ‘Jail Credit.’” (Doc. 14 at 1:20-

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21). After a thorough and sound analysis, Judge Fine concluded that “the Bureau of

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Prisons ha[d] calculated Petitioner’s sentence correctly.” (Id. at 6:24). Judge Fine thus

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recommends denial of the Petition and dismissal.

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In so recommending, Judge Fine explicitly advised the parties that they had

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“fourteen days from the date of service of a copy of” the R&R “within which to file

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specific written objections with the Court.” (Doc. 14 at 7:7-8) (citations omitted). Judge

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Fine further explicitly advised that “[f]ailure to file timely objections to the” R&R “may

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result in the acceptance of the [R&R] by the District Court without further review.” (Id.

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at 7:10-13) (citation omitted). Judge Fine was equally explicit that “[f]ailure to file timely

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objections to any factual determinations of the Magistrate Judge will be considered a

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waiver of a party’s right to appellate review of the findings of fact in an order or

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judgment entered pursuant to the” R&R. (Id. at 7:14-16) (citation omitted).

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In accordance with the foregoing, the parties had until September 26, 2016 by

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which to timely file objections to the R&R. The parties did not do so. Absent any timely

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); see also Wang v.

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Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo review of a R &

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R is only required when an objection is made to the R & R, United States v. Reyna–

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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“Neither the Constitution nor the

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[Federal Magistrates Act] requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct”)[.]”). Nonetheless, the

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Court has reviewed the R&R and agrees with its findings and recommendations. The

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Court will, therefore, accept the R&R, deny the Petition and dismiss this matter. See 28

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U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate judge.”); Fed.R.Civ.P.

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72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 14) is ACCEPTED

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and ADOPTED as an Order of this Court.
IT IS FURTHER ORDERED DENYING and DISMISSING the Petition for
Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1).

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal are DENIED because dismissal Petitioner has not

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made a substantial showing of the denial of a constitutional right.

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 17th day of October, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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