Gonsalves #227864 v. Ryan et al

Filing 15

ORDER ADOPTING 14 Magistrate Judge Bade's Report and Recommendation. The Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. Pursuant to Rule 11(a) of the Rules Governing Section 22 54 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petition is justified, in part, because reasonable jurists could not find that the Court's determination that Petitioner is not entitled to relief debatable, wrong, or deserving of encouragement to proceed further. The Clerk shall terminate this action and enter judgment. Signed by Judge Diane J Humetewa on 1/25/17. (LSP)

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NOT FOR PUBLICATION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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Anthony J Gonsalves,
Petitioner,

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ORDER

v.

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No. CV-16-01774-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. 14) of United States Magistrate Judge Bridget S. Bade, filed on

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December 22, 2016. The Petitioner asserts a single claim for relief based upon the

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alleged ineffective assistance of his trial counsel. Judge Bade soundly reasoned that this

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claim lacks merit. Hence, she recommends denial of the Petition and dismissal with

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prejudice.

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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. 14 at 8:10-11) (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 [R&R] by the District Court without further review.”

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(Id. at 8:13-15) (citation omitted). Judge Bade was equally explicit that “[f]ailure to file

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timely objections to any factual determination of the Magistrate Judge may be considered

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a waiver of a party’s right to appellate review of the findings of fact in an order or

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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 January 4, 2017 by which to

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

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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).

Absent any timely

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Accordingly,

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IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 14) 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 dismissal of the Petition is justified, in part, because

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reasonable jurists could not find that the Court’s determination that Petitioner is not

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entitled to relief debatable, wrong, or deserving of encouragement to proceed further. See

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Miller-El v. Cockrell, 537 U.S. 322, 326 (2003). Petitioner also has not made the required

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substantial showing of the denial of a constitutional right. See id. (citing 28 U.S.C. §

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2253(c)(2)).

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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 25th day of January, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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