Jimenez-Najera v. USA

Filing 7

ORDER ADOPTING 6 Magistrate Judge Duncan's Report and Recommendation. Petitioner's Motion to Vacate, Set Aside or Correct Sentence (Doc. 1 ) is denied. Petitioner's Motion for Award of Relief Requested (Doc. 5 ) is denied.The Clerk shall terminate this action and enter judgment. Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. Signed by Judge G Murray Snow on 6/13/16. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gilberto Jimenez-Najera,
Petitioner,

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ORDER

v.

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No. CV-15-02565-PHX-GMS
No. CR-14-01418-001-PHX-GMS

USA,

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Respondent.

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Pending before the Court are Petitioner’s Motion to Vacate, Set Aside, or Correct

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Sentence under 28 U.S.C. ¶ 2255 and United States Magistrate Judge David K. Duncan’s

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Report and Recommendation (“R&R”). Docs. 1, 6. The R&R recommends that the

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Court deny Petitioner’s Motion to Vacate, Set Aside or Correct Sentence. Doc. 6 at 6.

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The Magistrate Judge advised the parties that they had fourteen (14) days to file

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objections to the R&R and that failure to file timely objections could be considered a

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waiver of the right to obtain review of the R&R. Id. at 7 (citing Fed. R. Civ. P. 72, 6(a),

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6(b); United States 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 accept the R&R and deny the Motion to Vacate, Set Aside, or

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Correct Sentence. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or modify

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the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions.”).

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IT IS ORDERED:

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1.

Magistrate Judge Duncan’s R&R (Doc. 6) is accepted.

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2.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is

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denied.

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3.

Petitioner’s Motion for Award of Relief Requested (Doc. 5) is denied.

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4.

The Clerk of Court shall terminate this action and enter judgment

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accordingly.
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Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Movant files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 13th day of June, 2016.

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Honorable G. Murray Snow
United States District Judge

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