Mendoza v. USA

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS ORDERED: 1. Magistrate Judge Metcalf's R&R (Doc. 14 ) is accepted. 2. The Movant's Motion to Vacate, Set Aside or Correct Sentence (Doc. 1 ) is dismissed with prejudice. 3. This action is t erminated and the Clerk of Court is directed to enter judgment accordingly. 4. Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. SeeSlack v. McDaniel, 529 U.S. 473, 484 (2000). Signed by Judge G Murray Snow on 5/8/17. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Omar Mendoza,
Movant/Defendant,

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ORDER

v.

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No. CV-16-02555-PHX-GMS
No. CR-09-0709-PHX-GMS

USA,

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Respondent/Plaintiff.

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Pending before the Court is Movant’s Motion Under 28 U.S.C. § 2255 to Vacate,

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Set Aside or Correct Sentence and United States Magistrate Judge James F. Metcalf’s

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Report and Recommendation (“R&R”). Docs. 1, 14. The R&R recommends that the

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Court dismiss the Motion with prejudice. Doc. 14 at 9. The Magistrate Judge advised

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the parties that they had fourteen days to file objections to the R&R and that failure to file

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timely objections could be considered a waiver of the right to obtain review of the R&R.

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Id. at 9 (citing Fed. R. Civ. P. 72 (b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th 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 accept the R&R and dismiss the Motion with prejudice. See 28

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U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate”); Fed. R. Civ. P.

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72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition;

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receive further evidence; or return the matter to the magistrate judge with instructions.”).

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IT IS ORDERED:

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1.

Magistrate Judge Metcalf’s R&R (Doc. 14) is accepted.

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2.

The Movant’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is

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dismissed with prejudice.
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This action is terminated and the Clerk of Court is directed to enter

judgment accordingly.
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Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Movant files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 8th day of May, 2017.

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Honorable G. Murray Snow
United States District Judge

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