Dewey v. USA

Filing 16

ORDER - IT IS ORDERED that Magistrate Judge Duncan's R&R (Doc. 15 ) is ACCEPTED. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Doc. 10 ) is DENIED. Respondent's Motion to Dismiss (Doc. 4 ) is GRANTED. 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 of the Court shall terminate this case. (See document for further details). Signed by Judge Douglas L Rayes on 7/30/18. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Derek Michael Dewey,
Petitioner,

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ORDER

v.

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No. CV-16-08293-PCT-DLR

USA,

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Respondent.

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Before the Court are Petitioner Derek Michael Dewey’s Motion to Vacate, Set

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Aside, or Correct Sentence (Doc. 10), Respondent’s Motion to Dismiss (Doc. 4), and

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United States Magistrate Judge David K. Duncan’s Report and Recommendation

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(“R&R”) (Doc. 15). The R&R recommends that the Court deny Petitioner’s motion,

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grant Respondent’s motion, and deny a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal. The Magistrate Judge advised the parties that they had

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fourteen days to file objections to the R&R and that failure to file timely objections could

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be considered a waiver of the right to obtain review of the R&R. See United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Neither party filed objections, which

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relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at

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1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . .

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require any review at all . . . of any issue that is not the subject of an objection.”); Fed. R.

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Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate

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judge’s disposition that has been properly objected to.”). The Court has nonetheless

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reviewed the R&R and finds that it is well-taken. The Court will accept the R&R in its

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

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

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Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or modify the

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recommended disposition; receive further evidence; or return the matter to the magistrate

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judge with instructions.”).

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IT IS ORDERED that Magistrate Judge Duncan’s R&R (Doc. 15) is

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ACCEPTED. Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 10) is

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DENIED. Respondent’s Motion to Dismiss (Doc. 4) is GRANTED. A Certificate of

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Appealability and leave to proceed in forma pauperis on appeal are DENIED because

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

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Clerk of the Court shall terminate this case.

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Dated this 30th day of July, 2018.

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Douglas L. Rayes
United States District Judge

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