Holmes v. USA

Filing 12

ORDER - That Magistrate Judge Boyles' Report and Recommendation (Doc. 11 ) is accepted and adopted by the Court. The Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CV-16-02062 -PHX-SPL, Doc. 1 ; Doc.74, CR-05-00165-PHX-SPL) is denied and this case is dismissed with prejudice. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Defendant has not made a substantial showing of the denial of a constitutional right. The Clerk of Court shall file this Order in the underlying related criminal action, Case No. CR-05-00165-PHX-SPL and shall enter judgment accordingly and terminate this action.. Signed by Judge Steven P Logan on 10/23/2017. (KAS)

Download PDF
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff/Respondent, ) ) vs. ) ) Jason Darwin Holmes, Sr., ) ) Defendant/Movant. ) ) ) United States of America, No. CV-16-02062-PHX-SPL (No. CR-05-00165-PHX-SPL) ORDER 15 Movant Jason Darwin Holmes, Sr. has filed a Motion to Vacate, Set Aside, or 16 Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 17 (“Motion”) (Doc. 1). On September 18, 2017, the Honorable John Z. Boyle, United 18 States Magistrate Judge, issued a Report and Recommendation (“R&R”), recommending 19 that the Court deny the Motion. Judge Boyle advised the parties that they had fourteen 20 (14) days to file objections to the R&R and that failure to file timely objections could be 21 considered a waiver of the right to obtain review of the R&R. (Doc. 11 at 6); 28 U.S.C. § 22 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 23 Cir. 2003). 24 The parties did not file objections, which relieves the Court of its obligation to 25 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 26 (1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is 27 not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must 28 determine de novo any part of the magistrate judge’s disposition that has been properly 1 objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well- 2 taken. The Court will adopt the R&R and deny the Motion. See 28 U.S.C. § 636(b)(1) 3 (stating that the district court “may accept, reject, or modify, in whole or in part, the 4 findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The 5 district judge may accept, reject, or modify the recommended disposition; receive further 6 evidence; or return the matter to the magistrate judge with instructions.”). Accordingly, 7 IT IS ORDERED: 8 1. That Magistrate Judge Boyles’ Report and Recommendation (Doc. 11) is 9 accepted and adopted by the Court; 10 2. That the Motion to Vacate, Set Aside, or Correct Sentence by a Person in 11 Federal Custody pursuant to 28 U.S.C. § 2255 (CV-16-02062-PHX-SPL, Doc. 1; Doc. 12 74, CR-05-00165-PHX-SPL) is denied; 13 3. That this case is dismissed with prejudice; 14 4. That a certificate of appealability and leave to proceed in forma pauperis on 15 appeal are denied because Defendant has not made a substantial showing of the denial of 16 a constitutional right; 5. That the Clerk of Court shall file this Order in the underlying related criminal 17 18 action, Case No. CR-05-00165-PHX-SPL; and 6. That the Clerk of Court shall enter judgment accordingly and terminate this 19 20 21 action. Dated this 23rd day of October, 2017. 22 23 Honorable Steven P. Logan United States District Judge 24 25 26 27 28 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?