Ramos v. Gurule et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION re: 14 Report and Recommendation. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1 ) is denied and dismissed as moot. Pursuant to Rule 11(a) of the Rules Governing Section 22 54 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 4/9/19. (DXD)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marlon Ramos,
Petitioner,

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ORDER

v.

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No. CV-17-03363-PHX-DJH

Jon Gurule, et al.,

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Respondents.

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This matter is before the Court on Marlon Ramos’ (“Petitioner”) pro se Petition for

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Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2241 (Doc. 1), and the

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Report and Recommendation (“R&R”) (Doc. 14) issued by United States Magistrate Judge

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Michelle H. Burns on August 22, 2018. In his Petition, Petitioner challenged his continued

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detention in Immigration and Customs Enforcement (“ICE”) without a bond hearing.

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(Doc. 1). On March 19, 2018, Respondent filed response to the Petition (Doc. 11),

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informing the Court that the immigration court had held on a bond hearing on

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March 12, 2018. (Doc. 11 at 2; Doc. 11-1). Petitioner did not file a reply in support of his

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Petition and on August 10, 2018, Judge Burns issued an order requiring Petitioner to show

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cause within ten (10) days as to why his Petition should not be dismissed as moot.

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(Doc. 12). Plaintiff did not respond. Judge Burns thereafter concluded that because

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Petitioner’s sole relief had been granted, the Petition was moot and recommended it be

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denied and dismissed accordingly.

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In her R&R, Judge Burns advised the parties that they had fourteen days to file

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objections and that the failure to timely do so “may result in the acceptance of the Report

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and Recommendation by the district court without further review.” (Doc. 14 at 3) (citing

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). Petitioner has not

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

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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) (noting that

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the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “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 Burns’ R&R and agrees with its findings

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and recommendations. The Court will, therefore, accept the R&R and dismiss the Petition.

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See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole

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

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72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Burns’ R&R (Doc. 14) is accepted and

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adopted as the order of this Court.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241 (Doc. 1) is denied and dismissed as moot.

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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 bar

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

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…

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…

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…

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 9th day of April, 2019.

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Honorable Diane J. Humetewa
United States District Judge

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