Malaby v. Shinn et al

Filing 17

ORDER - IT IS ORDERED that the R&R's recommended disposition (Doc. 16 ) is accepted, that the Amended Petition (Doc. 8 ) is denied, and that the Clerk of Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of a ppealability and leave to proceed in forma pauperis on appeal be DENIED because petitioner has not made a substantial showing of the denial of a constitutional right. See attached Order for complete details. Signed by Judge Dominic W Lanza on 11/19/21. (SMH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mace Allen Malaby,
Petitioner,

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ORDER

v.

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No. CV-21-00403-PHX-DWL

David Shinn,

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Respondent.

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Pending before the Court are Petitioner’s Amended Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 8) and the Report and Recommendation

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(“R&R”) of the United States Magistrate Judge (Doc. 16). The R&R, which was issued

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on October 26, 2021, recommends that the amended petition be denied and further provides

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that “[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.” (Doc. 16

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at 8.)

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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, 1121 (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. 16) is accepted,

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that the Amended Petition (Doc. 8) is denied, and that the Clerk of Court shall enter

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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 petitioner has not made a

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substantial showing of the denial of a constitutional right.

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Dated this 19th day of November, 2021.

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