Smith #104463 v. Ryan et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION accepting 14 Report and Recommendation. The Clerk shall enter judgment denying and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1 ) with pre judice and terminate this action. A Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable. Signed by Senior Judge Neil V Wake on 5/23/17. (DXD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Frederick L. Smith,
No. CV-16-01429-PHX-NVW (DKD)
Petitioner,
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v.
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ORDER
Charles L. Ryan, et al.,
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Respondents.
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Pending before the court is the Report and Recommendation (“R&R”) of
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Magistrate Judge David K. Duncan (Doc. 14) issued April 3, 2017, regarding petitioner’s
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Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). The
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R&R recommends that the Petition be denied and dismissed with prejudice.
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Magistrate Judge advised the parties that they had fourteen days to file objections to the
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R&R. (R&R at 6 (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of
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Civil Procedure). No objections were filed.
The
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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
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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
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copy [of the magistrate’s order]. A party may not assign as error a defect in the order not
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timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.
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1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).
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Notwithstanding the absence of an objection, the court has reviewed the R&R and
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finds that it is well taken. The court will accept the R&R and dismiss the Petition. See
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28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in
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whole or in part, the findings or recommendations made by the magistrate”).
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IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 14) is accepted.
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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
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and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.
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§ 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.
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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to
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proceed in forma pauperis on appeal be denied because dismissal of the Petition is
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justified by a plain procedural bar and jurists of reason would not find the ruling
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debatable.
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Dated this 23rd day of May, 2017.
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