Gaybor v. USA

Filing 21

ORDER - IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of the Magistrate Judge. (Doc. 19 .) IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 363 in CR-01-01 136-PHX-SMM and Doc. 10 in CV-16-04598-PHX-SMM) be denied and the civil action opened in connection with this Motion (CV-16-04598-PHX-SMM) be dismissed with prejudice. IT IS FURTHER ORDERED that a Certificate of Appealability be denied because jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong. (See document for complete details). Signed by Senior Judge Stephen M McNamee on 9/19/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christian Eduardo Gaybor,

No. CV-16-04598-PHX-SMM
No. CR-01-01136-PHX-SMM

Petitioner,

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ORDER

v.
USA,

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Respondent.

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Pending before the Court is Petitioner’s Amended Motion to Vacate, Set Aside, or

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Correct Sentence Under 28 U.S.C. § 2255. (Doc. 10.) The matter was referred to Magistrate

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Judge Deborah M. Fine for a Report and Recommendation. (Doc. 11.) On May 9, 2018,

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the Magistrate Judge filed a Report and Recommendation with this Court. (Doc. 19.) To

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date, no objections have been filed.

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STANDARD OF REVIEW

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The Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). Parties have fourteen days from the service

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of a copy of the Magistrate’s recommendation within which to file specific written

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objections to the Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a

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Magistrate Judge’s recommendation relieves the Court of conducting de novo review of

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the Magistrate Judge’s factual findings and waives all objections to those findings on

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appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a

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Magistrate Judge’s conclusion “is a factor to be weighed in considering the propriety of

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finding waiver of an issue on appeal.” Id.

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DISCUSSION

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In reviewing the Magistrate Judge’s Report and Recommendation, the Court finds

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that it is exceedingly well written and organized and provides an extensive and thorough

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analysis of the issues presented. Thus, having reviewed the Report and Recommendation

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of the Magistrate Judge, and no Objections having been made by any party thereto, the

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Court hereby incorporates and adopts the Magistrate Judge’s thorough and well-reasoned

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Report and Recommendation.

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CONCLUSION

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Accordingly, for the reasons set forth,

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IT IS HEREBY ORDERED that the Court adopts the Report and

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Recommendation of the Magistrate Judge. (Doc. 19.)

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IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside, or Correct

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Sentence Under 28 U.S.C. § 2255 (Doc. 363 in CR-01-01136-PHX-SMM and Doc. 10 in

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CV-16-04598-PHX-SMM) be denied and the civil action opened in connection with this

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Motion (CV-16-04598-PHX-SMM) be dismissed with prejudice.

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IT IS FURTHER ORDERED that a Certificate of Appealability be denied

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because jurists of reason would not find the district court’s assessment of the constitutional

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claims debatable or wrong.

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Dated this 19th day of September, 2018.

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Honorable Stephen M. McNamee
Senior United States District Judge

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