Hiland v. Ryan

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 15 ) is accepted. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying and dismissing petitioner' ;s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Docs. 1 ) with prejudice. Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition and Amended Petition for a Writ of Habeas Corpus, the Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall terminate this action. See document for further details. Signed by Judge Neil V Wake on 5/15/2015. (REK)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Tyson Joseph Hiland,
Petitioner,

10
11

ORDER

v.

12

No. CV-14-08069-PCT-NVW (JZB)

Charles L. Ryan, et al.,

13

Respondents.

14
15

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

16

Magistrate Judge John Z. Boyle (Doc. 15) issued April 15, 2015, regarding petitioner’s

17

Petition Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1).

18

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

19

Magistrate Judge advised the parties that they had fourteen days to file objections to the

20

R&R. (R&R at 6 (citing 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b) and 72, Federal

21

Rules of Civil Procedure). No objections were filed.

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

copy [of the magistrate’s order]. A party may not assign as error a defect in the order not

3

timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir.

4

1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).

5

Notwithstanding the absence of an objection, the court has reviewed the R&R and

6

finds that it is well taken. The court will accept the R&R and dismiss the Petition. See

7

28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in

8

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

9
10

IT IS THEREFORE ORDERED that Report and Recommendation of the
Magistrate Judge (Doc. 15) is accepted.

11

IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying

12

and dismissing petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.

13

§ 2254 (Docs. 1) with prejudice. The Clerk shall terminate this action.

14

Having considered the issuance of a Certificate of Appealability from the order

15

denying Petitioner’s Petition and Amended Petition for a Writ of Habeas Corpus, the

16

Court FINDS: Certificate of Appealability and leave to proceed in forma pauperis on

17

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

18

bar and jurists of reason would not find the procedural ruling debatable, and because

19

Petitioner has not made a substantial showing of the denial of a constitutional right.

20

Dated this 15th day of May, 2015.

21
22
23

Neil V. Wake
United States District Judge

24
25
26
27
28

-2-