Ashpole #144294 v. Beresky et al

Filing 19

ORDER ACCEPTING and ADOPTING 18 Magistrate Judge Bridget S. Bade's Report and Recommendation. This proceeding is stayed and the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5 ) is held in abeyance pending the Arizona Court of Appeals' decision in case number 1 CA-CR 16-0103-PRPC. No later than thirty (30) days after the date of service of this Order, Respondents and Petitioner must inform the Court of the status of his proceedings in state court. See document for details. Signed by Judge Steven P Logan on 4/29/16. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Albert Ashpole,

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Petitioner,
vs.

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Justin Beresky, et al.,
Respondents.

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No. CV-15-02300-PHX-SPL (BSB)
ORDER

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Petitioner James Albert Ashpole has filed an Amended Petition for Writ of Habeas

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Corpus pursuant to pursuant to 28 U.S.C. § 2254 (Doc. 5). The Honorable Bridget S.

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Bade, United States Magistrate Judge, issued a Report and Recommendation (“R&R”)

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(Doc. 18), recommending that this matter be stayed and held in abeyance. Judge Bade

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advised the parties that they had fourteen (14) days to file objections to the R&R and that

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failure to file timely objections could be considered a waiver of the right to obtain review

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of the R&R. (Doc. 18) (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72; United States

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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 will stay this action. 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.

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That Magistrate Judge Bridget S. Bade’s Report and Recommendation

(Doc. 18) is accepted and adopted by the Court;
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That this proceeding is stayed and the Amended Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) is held in abeyance pending the

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Arizona Court of Appeals’ decision in case number 1 CA-CR 16-0103-PRPC; and

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3.

That no later than thirty (30) days after the date of service of this Order,

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Respondents and Petitioner must inform the Court of the status of his proceedings in state

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court; and

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4.

That every ninety (90) days after the filing of the initial status report,

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Petitioner and Respondents must file a new report regarding the status of the state court

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proceedings. Petitioner’s failure to comply with these instructions may result in the Court

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vacating the stay and dismissing this matter for failure to comply with Court orders. See

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Fed. R. Civ. P. 41(b).

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Dated this 29th day of April, 2016.

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Honorable Steven P. Logan
United States District Judge

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