Murphy v. Arizona, State of

Filing 24

ORDER - IT IS ORDERED: 1. That the Magistrate Judge's Report and Recommendation (Doc. 21 ) is accepted and adopted by the Court. 2. That the Petitioner's Objections (Doc. 22 ) are overruled. 3. That the Second Amended Petition for W rit of Habeas Corpus (Doc. 11 ) is denied and this action is dismissed with prejudice. 4. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a pla in procedural bar and reasonable jurists would not find the ruling debatable; and 5. That the Clerk of Court shall enter judgment according and terminate this action. See attached Order for complete details. Signed by Judge Steven P Logan on 1/10/22. (SMH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brendan J. Murphy,

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Petitioner,
v.

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David Shinn, et al.,
Respondents.

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No. CV 20-2203-PHX-SPL
ORDER

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The Court has before it Petitioner’s Second Amended Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 11), the Limited Answer from the Respondents

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(Doc. 18), and the Petitioner’s Reply to the Limited Answer. (Doc. 20) Additionally, the

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Court is in receipt the Report and Recommendation of the Magistrate Judge (Doc. 21), the

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Petitioner’s Objections (Doc. 22), and Respondent’s Reply to the Petitioner Objections.

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(Doc. 23)

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a

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timely objection to an R&R, the district judge reviews de novo those portions of the R&R

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that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires

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specific written objections to the findings and recommendations in the R&R. See United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It

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follows that the Court need not conduct any review of portions to which no specific

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objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474

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U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial

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economy). Further, a party is not entitled as of right to de novo review of evidence or

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arguments which are raised for the first time in an objection to the R&R, and the Court’s

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decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622

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(9th Cir. 2000).

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The Court has carefully undertaken an extensive review of the sufficiently

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developed record. The Petitioner’s objections to the findings and recommendations have

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also been thoroughly considered.

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After conducting a de novo review of the issues and objections, the Court reaches

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the same conclusions reached by the magistrate judge. The R&R will be adopted in full.

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Accordingly,

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IT IS ORDERED:

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1.

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That the Magistrate Judge’s Report and Recommendation (Doc. 21) is

accepted and adopted by the Court.

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2.

That the Petitioner’s Objections (Doc. 22) are overruled.

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3.

That the Second Amended Petition for Writ of Habeas Corpus (Doc. 11) is

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denied and this action is dismissed with prejudice.
4.

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That a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because the dismissal of the Petition is justified by a plain procedural

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bar and reasonable jurists would not find the ruling debatable; and
5.

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That the Clerk of Court shall enter judgment according and terminate this

action.
Dated this 10th day of January 2022.

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Honorable Steven P. Logan
United States District Judge

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