Novak v. Department of Homeland Security

Filing 47

ORDER that Magistrate Judge Macdonald's Report and Recommendation is ADOPTED. (Doc. 43 .) It is further Ordered Petitioner Rick Novak's Amended Petition for a Writ of Habeas Corpus Under § 2241 is DENIED. (Doc. 8 .) It is further O rdered Petitioner's Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 33 ) and a Renewed Motion for Leave to File a Second Amended Complaint (Doc. 39 ) are DENIED. It is further Ordered Petitioner's Request for Cu stody Hearing or Conditional Parole is DENIED AS MOOT. (Doc. 28 .) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court will not issue a certificate of appealability because reasonable persons could not "debate whether (o r, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." The Clerk of Court shall enter judgment accordingly and close the case file in this matter. Signed by Senior Judge Raner C Collins on 9/11/2019. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rick Novak,

No. CV-18-01330-PHX-RCC (BGM)
Petitioner,

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v.

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Department of Homeland Security, et al.,

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ORDER

Respondents.

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On May 23, 2018, Petitioner Rick Novak filed an Amended Petition for a Writ of

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Habeas Corpus Under § 2241 (Doc. 8.) Petitioner also filed a Request for Custody

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Hearing or Conditional Parole (Doc. 28), a Motion for Temporary Restraining Order and

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Preliminary Injunction (Doc. 33), and a Renewed Motion for Leave to File a Second

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Amended Complaint (Doc. 39). On August 9, 2019, Magistrate Judge Bruce G.

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Macdonald issued a Report and Recommendation (R&R) in which he recommended that

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this Court deny Novak’s Petition, his renewed Motion for Leave, and his Motion for

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Temporary Restraining Order, and find moot Petitioner’s Request of Custody Hearing.

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(Doc. 43.) No objections to the Magistrate Judge’s R&R have been filed.

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REPORT AND RECOMMENDATION: STANDARD OF REVIEW

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The standard the District Court uses when reviewing a magistrate judge’s R&R is

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dependent upon whether a party objects: where there is no objection to a magistrate’s

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factual or legal determinations, the District Court need not review the decision “under a

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de novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). “[W]hile the

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statute does not require the judge to review an issue de novo if no objections are filed, it

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does not preclude further review by the district judge, sua sponte or at the request of a

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party, under a de novo or any other standard.” Id. at 154.

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No objections have been filed. The Court is aware that the R&R was returned as

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undeliverable, however, the onus is on Plaintiff to provide a current mailing address.

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(Doc. 9 at 5.) The Court finds the Magistrate Judge’s recommendations well-reasoned

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and will adopt the R&R.

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Accordingly, IT IS ORDERED:
1) Magistrate Judge Macdonald’s Report and Recommendation is ADOPTED. (Doc.
43.)
2) Petitioner Rick Novak’s Petition for a Writ of Habeas Corpus Under § 2241 is
DENIED. (Doc. 8.)

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3) Petitioner’s Motion for Temporary Restraining Order and Preliminary Injunction

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(Doc. 33) and a Renewed Motion for Leave to File a Second Amended Complaint

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(Doc. 39) are DENIED.

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4) Petitioner’s Request for Custody Hearing or Conditional Parole is DENIED AS
MOOT. (Doc. 28.)

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5) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the Court will

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not issue a certificate of appealability because reasonable persons could not

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“debate whether (or, for that matter, agree that) the petition should have been

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resolved in a different manner or that the issues presented were adequate to

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deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473,

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484 (2000) (internal quotations omitted).

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6) The Clerk of Court shall enter judgment accordingly and close the case file in this

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matter.

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Dated this 11th day of September, 2019.

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