Ben v. USA

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION as to Lonnie Ben (1) that Report and Recommendation of the Magistrate Judge (Doc. 19 ) is accepted. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1 ) with prejudice. The Clerk shall terminate the civil action. The Court FINDS: that a Certificate of Appealability and leave to proceed in forma pauperis be DENIED because Movant has not made a substantial showing of the denial of a constitutional right, re: CR-12-8250-NVW. Signed by Judge Neil V Wake on 10/8/15.(KGM). Signed by Judge Neil V Wake on 10/8/15. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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No. CV-14-08131-PCT-NVW (ESW)
CR-12-08250-PCT-NVW

Plaintiff/Respondent,
ORDER

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vs.

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Lonnie Ben,

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Defendant/Movant.
Pending before the court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Eileen S. Willett (Doc. 19) regarding Movant’s Motion to Vacate, Set

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Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1).

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The R&R

recommends that the Motion be dismissed with prejudice. The Magistrate Judge advised

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the parties that they had fourteen days to file objections to the R&R. (R&R at 12 (citing

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28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72). No objections were filed.

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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
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); Phillips 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 Motion to
Vacate with prejudice. 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.19) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment
dismissing Movant’s Motion to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255 (Doc. 1) with prejudice. The Clerk shall terminate this action.
Having considered the issuance of a Certificate of Appealability from the order
denying Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by Person in Federal Custody, the Court FINDS: that a Certificate of
Appealability and leave to proceed in forma pauperis be DENIED because Movant has
not made a substantial showing of the denial of a constitutional right.
Dated this 8th day of October, 2015.

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Neil V. Wake
United States District Judge

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