Garcia-Hurtado v. USA

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Duncan's R&R (Doc. 21 ) is accepted. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1 ) is denied. The Clerk of Court shall terminate this action. In the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge G Murray Snow on 5/2/17. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carlos Antonio Garcia-Hurtado,
Petitioner,

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ORDER

v.

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No. CV-16-00457-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 and United States Magistrate Judge David K. Duncan’s Report and

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Recommendation (“R&R”) (Docs. 1, 21). The R&R recommends that the Court deny the

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Motion (Doc. 21 at 4). The Magistrate Judge advised the parties that they had fourteen

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

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considered a waiver of the right to obtain review of the R&R. Id. at 4 (citing 28

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U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(b); United States v. Reyna-Tapia, 328 F.3d

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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. 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.”).

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IT IS HEREBY ORDERED:

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1.

Magistrate Judge Duncan’s R&R (Doc. 21) 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.

The Clerk of Court shall terminate this action.

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4.

In the event Petitioner files an appeal, the Court declines to issue a

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certificate of appealability because Petitioner has not made a substantial showing of the

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denial of a constitutional right.

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Dated this 2nd day of May, 2017.

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Honorable G. Murray Snow
United States District Judge

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