Valenzuela #172770 v. Ryan et al

Filing 72

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 65 . IT IS ORDERED that Magistrate Judge Burns' R&R 65 is ACCEPTED. Petitioner's 8 Petition for Writ of Habeas Corpus is DISMISSED. The Clerk of the Court shall terminate this case. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability is denied because Petitioner has not made a substantial showing o f the denial of a constitutional right and because the dismissal of the petition is justified by a plain procedural bar, and jurists of reason would not find the procedural ruling debatable. See document for further details. Signed by Judge Douglas L Rayes on 1/3/19. (GMP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melinda Gabriella Valenzuela,
Petitioner,

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ORDER

v.

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No. CV-17-01892-PHX-DLR

Charles L Ryan, et al.,

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Respondents.

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Before the Court is Petitioner Melinda Gabriella Valenzuela’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 and United States Magistrate Judge Michelle

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H. Burns’ Report and Recommendation (“R&R”). (Docs. 8, 65.)

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On October 16, 2018, the Court issued an order adopting the Magistrate’s R&R.

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(Doc. 68.)

Subsequently, on November 7, 2018, Petitioner filed a motion for

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reconsideration, arguing that she was unable to file her objections because she was

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transferred. (Doc. 70 at 1-2.) The Court granted this request, vacated the October 16 Order,

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and gave Petitioner fourteen days to file specific written objections. (Doc. 71.) That

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deadline has long since passed, and Petitioner has not filed any objections.

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The R&R recommends that the Petition be denied and dismissed with prejudice,

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finding that ground two fails on the merits, and grounds one and three are procedurally

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defaulted. The Magistrate Judge advised the parties that they had fourteen days to file

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objections to the R&R and that failure to file timely objections could be considered a

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waiver of the right to obtain review of the R&R. See United States v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003). Petitioner did not file objections, which relieves the Court

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of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn,

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474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any review at all . . .

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of any issue that is not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district

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judge must determine de novo any part of the magistrate judge’s disposition that has been

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properly objected to.”). The Court has nonetheless reviewed the R&R and finds that it is

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well-taken. The Court will accept the R&R and deny the Petition and dismiss. 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 that Magistrate Judge Burns’ R&R (Doc. 65) is ACCEPTED.

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Petitioner’s Petition for Writ of Habeas Corpus (Doc. 8.) is DISMISSED. The Clerk of

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the Court shall terminate this case.

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Having considered the issuance of a Certificate of Appealability from the order

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denying Petitioner’s Petition for a Writ of Habeas Corpus, a Certificate of Appealability is

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denied because Petitioner has not made a substantial showing of the denial of a

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constitutional right and because the dismissal of the petition is justified by a plain

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

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Dated this 3rd day of January, 2019.

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Douglas L. Rayes
United States District Judge

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