Mendez-Galdamez v. Gurule

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION re: 11 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 3/26/19. (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NOT FOR PUBLICATION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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Alan L Mendez-Galdamez,
Petitioner,

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ORDER

v.

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No. CV-17-03801-PHX-DJH

Jon Gurule,

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Respondent.

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This matter is before the Court on Alan L. Mendez-Galdamez’s (“Petitioner”)

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

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filed October 16, 2017, and the Report and Recommendation (“R&R”) (Doc. 11) issued by

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United States Magistrate Judge Deborah M. Fine on May 22, 2018. Petitioner’s sole claim

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for relief in his Petition was for a bond hearing. (Doc. 1 at 9). On March 26, 2018,

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Respondent filed response to the Petition (Doc. 10) that informed the Court that Petitioner

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had received a bond hearing on January 31, 2018, during which an immigration judge

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granted Petitioner’s request for a bond and had ordered his release from custody under a

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bond of $20,000.00. (Doc. 10-3 at 2). Petitioner did not file a reply in support of his

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Petition. In light of the January 31, 2018 bond hearing, Judge Fine concluded that the

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Petition was moot and recommended it be denied and dismissed accordingly.

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(Doc. 11 at 3).

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

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the failure to timely do so “may result in the District Court’s acceptance of the Report and

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Recommendation without further review. (Doc. 11 at 4) (citing United States v. Reyna-

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

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

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any objections, the Court is not required to review the findings and recommendations in

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the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting that the relevant provision

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of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed Judge Fine’s well-reasoned R&R and agrees

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with its findings and recommendations. The Court will, therefore, accept the R&R and

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dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject,

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or modify, in whole or in part, the findings or recommendations made by the magistrate

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judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Fine’s R&R (Doc. 11) is accepted and

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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. § 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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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and
enter judgment accordingly.
Dated this 26th day of March, 2019.

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Honorable Diane J. Humetewa
United States District Judge
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