Herrell #73244 v. O'Neil et al

Filing 18

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 14 - IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. IT IS FURTHER ORDERED that pursua nt to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petition has not made a substantial showing of the denial of a constitutional right. IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. (See document for further details). Signed by Judge Diane J Humetewa on 9/16/16. (LAD)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Neal Arthur Herrell,
Petitioner,

10
11

ORDER

v.

12

No. CV-15-02416-PHX-DJH

James O'Neil, et al.,

13

Respondents.

14
15

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

16

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R

17

& R”) by United States Magistrate Judge James F. Metcalf. (Doc. 14). In that R & R, the

18

Magistrate Judge determined that the petition is without merit and therefore

19

recommended that it be denied. Petitioner timely filed “written objections” to the R & R

20

(Doc. 15.) and Respondents filed a response to Petitioner’s objections. (Doc. 16).1

21

A. Standard of Review

22

This Court must “make a de novo determination of those portions of the report or

23

specified proposed findings or recommendations to which” Petitioner is objecting. 28

24

U.S.C. § 636(b)(1)(C); see also U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)

25

(emphasis added) (“Neither the Constitution nor the statue requires a district judge to

26
1

27
28

Thereafter, Plaintiff impermissibly filed a “Response to Respondent’s Response
to [his] Objection[]” (Doc. 17). The Court sua sponte strikes this document as
Fed.R.Civ.P. 72(b)(2) does not allow for such a filing. It only allows for the filing of
“specific written objections” to a R & R and a response to those objections. Fed.R.Civ.P.
72(b)(2).

1

review, de novo, findings and recommendations that the parties themselves accept as

2

correct.”). A district court, however, “must determine de novo any part of the magistrate

3

judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). Further, a

4

district court "may accept, reject, or modify, in whole or in part, the findings or

5

recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b)(3); see also 28

6

U.S.C. § 636(b)(1)(C).

7

B. Analysis

8

As stated above, Petitioner filed what he titled “written objections” to the R&R.

9

(Doc. 15). Respondents urge the Court to overrule Petitioner’s objections because they

10

are not “specific written objections to the proposed findings and recommendations” as

11

Rule 72(b)(2) requires.

12

objections “do no more than reiterate his version of the facts . . . and make the same

13

general assertions[,]” that are in the Petition. (Doc. 16 at 1:26-28) (emphasis in original).

14

The Court agrees. Petitioner’s version of the facts, among other things, omits that he

15

failed to object at re-sentencing when the State again requested a consecutive sentence.

16

(Doc. 13, exh. P at ¶ 4). Moreover, in his objections Petitioner ridicules the Magistrate

17

Judge, among others, as being “mind readers[,]” and backhandedly states that the R &

18

R’s analysis is “absolutely ridiculous.” (Doc. 15 at 3:3; 5 at 5). These gratuitous

19

comments can hardly be said to be proper, specific objections to the R & R. Thus, even

20

liberally construing Petitioner’s objections, the Court finds that they amount to a general

21

objection of which this Court has no obligation to review. See Martin v. Ryan, 2014 WL

22

5432133, at *2 (D.Ariz. 2014) (citing See, e.g., Warling v. Ryan, 2013 WL 5276367, at

23

*2 (D.Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to

24

object.’”). Nonetheless, the Court has reviewed the R & R and the record and agrees

25

with the Magistrate Judge’s sound analysis and recommendation.

Specifically, Respondents assert that Petitioner’s purported

26

Accordingly,

27

IT IS ORDERED that Magistrate Judge James F. Metcalf’s R & R (Doc. 14) is

28

accepted and adopted as an order of this Court.

-2-

1
2

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

3

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

4

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

5

on appeal are denied because Petition has not made a substantial showing of the denial of

6

a constitutional right.

7
8
9

IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 16th day of September, 2016.

10
11
12

Honorable Diane J. Humetewa
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-