Neese #030526 v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION re: 12 Report and Recommendation. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is dismissed with prejudice. Pursuant to Rule 11(a) of the Rules Governing Section 225 4 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. The Clerk shall terminate this action and enter judgment accordingly. Signed by Judge Diane J Humetewa on 11/3/17. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert James Neese,
Petitioner,

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ORDER

v.

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No. CV-17-00891-PHX-DJH

Charles L. Ryan, et al.,

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Respondents.

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This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”)

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(Doc. 12) issued by United States Magistrate Judge James F. Metcalf. Following a jury

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trial in April 2013, Petitioner was convicted of multiple counts of burglary and theft and

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sentenced to 22.75 years in prison. (Doc. 12 at 2-3). Petitioner raised two grounds for

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relief in the Petition: first, that the trial court violated his right to due process under the

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Fifth Amendment because the statute of limitations had expired on all but one of the

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counts in the indictment; and second, that the trial court violated his rights under the

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Sixth and Fourteenth Amendments by failing to grant an evidentiary hearing to decide the

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statute of limitations issue. (Doc. 12 at 4-5). After consideration of the issues, Judge

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Metcalf concluded that Petitioner's claims are procedurally defaulted and Petitioner has

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failed to show cause or prejudice or actual innocence to avoid the effect of his procedural

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default. (Doc. 12 at 23). Accordingly, Judge Metcalf recommends the Petition be

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dismissed with prejudice. (Id. at 24).

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Judge Metcalf advised the parties that they had fourteen days to file objections and

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that the failure to file timely objections "will be considered a waiver of [Petitioner’s]

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right to de novo consideration of the issues." (Doc. 12 at 25) (citing United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Petitioner has not filed an

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objection and the time to do so has expired.

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

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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.”).

Respondents have also not filed an

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Nonetheless, the Court has reviewed Judge Metcalf’s 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 dismiss the Petition. See 28 U.S.C. § 636(b)(1)(C) (“A

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judge 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,

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IT IS ORDERED that Magistrate Judge Metcalf’s R&R (Doc. 12) is accepted

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and adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is dismissed with 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 Petition is justified by a plain procedural

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bar and jurists of reason would not find the procedural ruling debatable.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 3rd day of November, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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