Bianco v. Ryan et al

Filing 23

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION re: 21 Report and Recommendation. FURTHER ORDERED that the 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE. FURTHER ORDERED th at pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal of the Petitioner is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable. IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 1/22/2018. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Raymond Andrew Bianco,
Petitioner,

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ORDER

v.

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No. CV-16-04298-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc.1) to which Respondents filed an Answer (Doc. 19)

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and the Petitioner replied (Doc. 20). Following a thorough and comprehensive analysis,

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Magistrate Judge Willett recommended denial of and dismissal with prejudice of the

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Petition. (Doc. 21).

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Judge Willett advised Petitioner that he had fourteen days to file objections and

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that the failure to file timely objections "may result in the acceptance of the Report and

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Recommendation by the district court without further review." (Doc. 21 at 13) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Petitioner

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has not filed an objection and the time to do so has expired. Respondents have also not

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filed an objection. Absent any objections, the Court is not required to review the findings

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and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The

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relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on

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its face require any review at all . . . of any issue that is not the subject of an objection.”);

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Reyna-Tapia, 328 F.3d at 1121 (same); 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.”).

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Nonetheless, the Court has reviewed Judge Willett’ comprehensive and well-

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reasoned R&R and agrees with its findings and recommendations. The Court will,

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therefore, accept the R&R and deny the Petition. See 28 U.S.C. § 636(b)(1)(C) (“A judge

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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, IT IS ORDERED that Magistrate Judge Willett's Report and
Recommendation (Doc. 21) is ACCEPTED and ADOPTED as the Order of this Court.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH

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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 Petitioner is justified by a plain

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procedural bar and reasonable jurists would not find the ruling debatable.

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IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this
action and enter judgment accordingly.
Dated this 22nd day of January, 2018.

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Honorable Diane J. Humetewa
United States District Judge

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