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