Olvera-Dominguez v. Ryan et al

Filing 16

ORDER ADOPTING 15 Magistrate Judge Bade's Report and Recommendation. The Petition for Habeas Corpus (Doc. 1 ) is denied and dismissed with prejudice.Pursuant to Rule 11(a) of the Rules GoverningSection 2254 Cases, a Certificate of Appealabili ty and leave to proceed in forma pauperison appeal are denied because Petitioner also has not made the required substantialshowing of the denial of a constitutional right. The Clerk shall terminate this action and enter judgment. Signed by Judge Diane J Humetewa on 04/10/2017. (KAS)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Saul Olvera-Dominguez,

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Petitioner,

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ORDER

v.

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No. CV-16-01612-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on pro se Petitioner’s Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation

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(“R&R”) (Doc. 15) of United States Magistrate Judge Bridget S. Bade, filed on January

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30, 2017. The Petitioner asserts a claim for ineffective assistance of trial counsel (“IAC”)

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based upon four separate grounds. After full consideration, Judge Bade soundly reasoned

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that Petitioner was not entitled to relief upon any of the four grounds which form the

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basis of his IAC claim. Hence, she recommends denial of the Petition. Judge Bade

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further recommends “that a Certificate of Appealability and leave to proceed in forma

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pauperis on appeal be DENIED because Petitioner has not made a substantial showing of

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the denial of a constitutional right.” (Doc. 15 at 17:10-12).

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In so recommending, Judge Bade explicitly advised the parties that they had

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“fourteen days from the date of service of a copy of” the R&R “within which to file

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specific written objections with the Court.” (Doc. 15 at 17:16-17) (citations omitted).

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Judge Bade further explicitly advised that “[f]ailure to file timely objections to the” R&R

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“may result in the acceptance of the District Court’s acceptance of the [R&R] without

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further review.” (Id. at 17:19-21) (citation omitted). Judge Bade was equally explicit that

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“[f]ailure to file timely objections to any factual determination of the Magistrate Judge

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may be considered a waiver of a party’s right to appellate review of the findings of fact in

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an order or judgment entered pursuant to the” R&R. (Id. at 8:16-19) (citation omitted).

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In accordance with the foregoing, the parties had until February 16, 2017 by which

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to timely file objections to the R&R. The parties did not do so. Absent any timely

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); United States v.

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

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district judge must determine de novo any part of the magistrate judge’s disposition that

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has been properly objected to.”). Nonetheless, the Court has reviewed the R&R and

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agrees with its findings and recommendations. The Court will, therefore, accept the R&R,

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deny the Petition and dismiss this matter with prejudice. See 28 U.S.C. § 636(b)(1)(C)

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(“A judge of the court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 15) is accepted and

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adopted as an Order of this Court.
IT IS FURTHER ORDERED that the Petition for Habeas Corpus pursuant to 28
U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because Petitioner also has not made the required substantial

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showing of the denial of a constitutional right.

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action

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and enter judgment accordingly.
Dated this 10th day of April, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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