Villareal v. Ryan et al

Filing 16

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 15 . The R&R's recommended disposition is accepted, that the 1 Petition is dismissed with prejudice, and that the Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because jurists of reason would not find it debatable that (i) the dismissal of a majority of Petitioner's habeas claims is justified by a plain procedural bar and (ii) Petitioner has not made a substantial showing of the denial of a constitutional right as to the remaining claims for relief. See document for further details. Signed by Judge Dominic W Lanza on 5/6/19. (GMP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joaquin Villareal,
Petitioner,

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ORDER

v.

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No. CV-18-01094-PHX-DWL

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court are 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”) of

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the United States Magistrate Judge (Doc. 15). The R&R, which was issued on April 12,

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2019, recommended that the petition be dismissed with prejudice and further provided that

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“[t]he parties shall have fourteen (14) days from the date of service of a copy of this

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recommendation within which to file specific written objections with the Court. . . . Failure

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to file timely objections to the Magistrate Judge’s Report and Recommendation may result

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in the acceptance of the Report and Recommendation by the District Court without further

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review.” (Doc. 15 at 10-11.)

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Here, no such objections have been filed. Thus, the Court accepts the Magistrate

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Judge’s recommendation. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does

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not appear that Congress intended to require district court review of a magistrate’s factual

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or legal conclusions, under a de novo or any other standard, when neither party objects to

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those findings.”); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[N]o

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review is required of a magistrate judge’s report and recommendation unless objections are

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filed.”). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1221 (9th Cir. 2003)

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(“[T]he district judge must review the magistrate judge’s findings and recommendations

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de novo if objection is made, but not otherwise.”).

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Accordingly,

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IT IS ORDERED that the R&R’s recommended disposition (Doc. 15) is accepted,

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that the Petition (Doc. 1) is dismissed with prejudice, and that the Clerk of Court shall

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enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability and leave to

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proceed in forma pauperis on appeal be denied because jurists of reason would not find it

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debatable that (i) the dismissal of a majority of Petitioner’s habeas claims is justified by a

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plain procedural bar and (ii) Petitioner has not made a substantial showing of the denial of

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a constitutional right as to the remaining claims for relief.

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Dated this 6th day of May, 2019.

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