Graves v. Roberts et al

Filing 13

ORDER: The Report and Recommendation (Doc. 12 ) is accepted and adopted. Respondents' Motion to Dismiss (Doc. 11 ) is granted; the Clerk of the Court shall enter judgment dismissing the Petition without prejudice. IT IS FINALLY ORDERED that a certificate of appealability is denied for the reasons stated in the Report and Recommendation. Signed by Senior Judge James A Teilborg on 10/19/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert T. Graves,
Petitioner,

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ORDER

v.

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No. CV-16-01304-PHX-JAT

Julie Roberts, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation (Doc. 12) from

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Magistrate Judge Duncan, recommending that this Court grant the Respondents’ Motion

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to Dismiss (Doc. 11) the Petition in this case, without prejudice.

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previously invited Petitioner to respond to the Motion to Dismiss, but Petitioner did not

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respond. Thus, Judge Duncan concluded and recommended that this Court find that

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Petitioner consented to the dismissal of his habeas petition, without prejudice, because he

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still has on-going state court proceedings. Neither party filed objections to the Report

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and Recommendation.

Judge Duncan

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Based on the foregoing,1

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IT IS ORDERED that the Report and Recommendation (Doc. 12) is accepted and

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adopted.

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See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)
(“statute makes it clear that the district judge must review the magistrate judge’s findings
and recommendations de novo if objection is made, but not otherwise” (emphasis in
original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).

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IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss (Doc. 11) is

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granted; the Clerk of the Court shall enter judgment dismissing the Petition without

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prejudice.

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IT IS FINALLY ORDERED that a certificate of appealability is denied for the

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reasons stated in the Report and Recommendation.

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Dated this 19th day of October, 2016.

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