Sharp v. Ryan

Filing 15

ORDER ADOPTING 13 Magistrate Judge Aspey's Report and Recommendation. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is denied and dismissed with prejudice. Pursuant to Rule 11(a) of the Rules Governing Se ction 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall terminate this actionand enter judgment. Signed by Judge Diane J Humetewa on 8/6/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jason Lawrence Sharp,
Petitioner,

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ORDER

v.

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No. CV-13-08163-PHX-DJH

Charles L. Ryan,

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Respondent.

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This matter is before the Court on 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”)

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issued by United States Magistrate Judge Mark E. Aspey (Doc. 13). In his one claim for

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relief in the Petition, Petitioner alleges that his trial counsel provided ineffective

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assistance of counsel in violation of the Sixth and Fourteenth Amendment when he failed

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to call as witnesses Petitioner’s three children, his nephew and his cousin, who he claims

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were present at the time he committed the offenses for which he was convicted. After a

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thorough analysis, Judge Aspey determined that the Arizona state courts’ rejection of

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Petitioner’s claim was not contrary to or an unreasonable application of the standard set

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forth in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, Judge Aspey

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recommends the Petition be denied.

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Judge Aspey advised the parties that they had fourteen day to file objections and

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that the failure to file timely objections “will be considered a waiver of a party’s right to

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de novo appellate consideration of the issues.” (Doc. 13 at 11-12) (citing Fed.R.Civ.P.

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72(b) and United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)).

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The parties have not filed objections and the time to do so has expired. Absent any

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328

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F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo

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any part of the magistrate judge’s disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and deny the Petition. See

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28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.”);

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Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Aspey’s R&R (Doc. 13) is accepted and

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adopted as the order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

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Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis

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on appeal are denied because Petitioner has not made a substantial showing of the denial

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of a constitutional right.

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IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action
and enter judgment accordingly.
Dated this 6th day of August, 2014.

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