Flores-Rayos v. USA

Filing 10

ORDER accepting 9 Report and Recommendation of the Magistrate Judge. FURTHER ORDERED that the Clerk of the Court enter judgment denying Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ). Th e Clerk shall terminate this action. A certificate of appealability is denied because appellant has not shown that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Signed by Senior Judge Neil V Wake on 3/8/17. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Andrey Esteban Flores-Rayos,

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No. CV-16-01232-PHX-NVW (DMF)
CR-15-00356-PHX-NVW

Movant/Defendant,
ORDER

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vs.

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United States of America,

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Respondent/Plaintiff.
Pending before the court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Deborah M. Fine (Doc. 9) regarding Movant’s Motion to Vacate, Set

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Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).

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The R&R

recommends that the Motion be denied and dismissed with prejudice. The Magistrate

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Judge advised the parties that they had fourteen days to file objections to the R&R.

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(R&R at 9 (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil

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Procedure). No objections were filed.

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Because the parties did not file objections, the court need not review any of the

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Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

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Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

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review at all . . . of any issue that is not the subject of an objection.”). The absence of a

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timely objection also means that error may not be assigned on appeal to any defect in the
rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A

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party may serve and file objections to the order within 14 days after being served with a
copy [of the magistrate’s order]. A party may not assign as error a defect in the order not
timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.
1996); Phillips v. GMC, 289 F.3d 1117, 1120–21 (9th Cir. 2002).
Notwithstanding the absence of an objection, the court has reviewed the R&R and
finds that it is well taken. The court will accept the R&R and deny the Motion. See 28
U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc.9) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
Movant’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255
(Doc. 1). The Clerk shall terminate this action.
A certificate of appealability is denied because appellant has not shown that
“jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,
484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648
(2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Dated this 8th day of March, 2017.

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Neil V. Wake
Senior United States District Judge

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