Elzy v. Ryan et al

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Boyle's Report and Recommendation 25 is accepted; Petitioner's Petition for Writ of Habeas Corpus 1 is denied and dismissed with prejudice; the Clerk shall terminate this action and enter judgment accordingly; in the event Petitioner 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 3/30/17. (REW)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gregory Elzy, Petitioner, 10 11 ORDER v. 12 No. CV-16-01490-PHX-GMS Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court are Petitioner’s Petition for Writ of Habeas Corpus and 16 United States Magistrate Judge John Z. Boyle’s Report and Recommendation (“R&R”) 17 (Docs. 1, 25). The R&R recommends that the Court deny and dismiss the Petition with 18 prejudice. Doc. 25 at 5-6. The Magistrate Judge advised the parties that they had ten 19 days to file objections to the R&R and that failure to file timely objections could be 20 considered a waiver of the right to obtain review of the R&R. Id. at 6 (citing 28 U.S.C. § 21 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(b); United States v. Reyna-Tapia, 328 F.3d 1114, 22 1121 (9th Cir. 2003)). 23 The parties did not file objections, which relieves the Court of its obligation to 24 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 25 (1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is 26 not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must 27 determine de novo any part of the magistrate judge’s disposition that has been properly 28 objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well- 1 taken. The Court will accept the R&R and deny and dismiss the Petition with prejudice. 2 See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in 3 whole or in part, the findings or recommendations made by the magistrate”); Fed. R. Civ. 4 P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended 5 disposition; receive further evidence; or return the matter to the magistrate judge with 6 instructions.”). 7 IT IS ORDERED: 8 1. Magistrate Judge Boyle’s R&R (Doc.25) is ACCEPTED. 9 2. Petitioner’s Petition for Writ of Habeas Corpus (Doc.1) is DENIED and 10 11 12 DISMISSED WITH PREJUDICE. 3. The Clerk of Court shall TERMINATE this action and enter judgment 13 accordingly. 4. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 14 event Petitioner files an appeal, the Court declines to issue a certificate of appealability 15 because reasonable jurists would not find the Court’s procedural ruling debatable. See 16 17 18 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Dated this 30th day of March, 2017. 19 20 21 Honorable G. Murray Snow United States District Judge 22 23 24 25 26 27 28 -2-

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