Reina v. Ryan et al

Filing 15

ORDER ADOPTING 14 Report and Recommendation of the Magistrate Judge. The Clerk shall enter judgment denying and dismissing petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 5 ) with preju dice. The Clerk shall terminate this action. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Judge Neil V Wake on 1/2/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Briceno Reina,

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No. CV-13-08106-PCT-NVW
Petitioner,

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vs.

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Charles L. Ryan, et al.,

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Respondents.

ORDER
AND
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS

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Pending before the court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Mark E. Aspey (Doc. 14) regarding petitioner’s Amended Petition for

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Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 5).

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recommends that the Petition be denied and dismissed with prejudice. The Magistrate

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Judge advised the parties that they had fourteen days to file objections to the R&R.

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(R&R at 15). No objections were filed.

The R&R

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Because the parties did not file objections, the court need not review any of the

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Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1);

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Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

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Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any

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review at all . . . of any issue that is not the subject of an objection.”). The absence of a

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timely objection also means that error may not be assigned on appeal to any defect in the

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rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A

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party may serve and file objections to the order within 14 days after being served with a

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copy [of the magistrate’s order]. A party may not assign as error a defect in the order not
timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.
1996); Philipps v. GMC, 289 F.3d 1117, 1120–21 (9th Cir. 2002).
Notwithstanding the absence of an objection, the court has reviewed the R&R and
finds that it is well taken. The court will accept the R&R and dismiss the Petition. See
28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate”).
IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 14) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
and dismissing petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant to
28 U.S.C. § 2254 (Doc. 5) with prejudice. The Clerk shall terminate this action.
Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate
of Appealability and leave to proceed in forma pauperis on appeal are Denied. Petitioner
has not made a substantial showing of the denial of a constitutional right.
Dated this 2nd day of January, 2014.

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