Roberts v. Apker

Filing 31

ORDER denying 20 Motion for Ruling; denying 21 Motion for Writ of Mandamus; denying 22 Motion to Compel; granting 26 Motion to Dismiss; adopting Report and Recommendations re 28 Report and Recommendations. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and close this case. (see attached PDF for complete information) Signed by Judge Raner C Collins on 8/10/11.(KAD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Petitioner, 10 11 ) ) ) ) ) ) ) ) ) ) ) ) James Dirk Roberts, vs. 12 Craig Apker, 13 Respondent. 14 No. CV 10-128-TUC-RCC ORDER 15 16 17 Pending before the Court is Petitioner James Dirk Roberts’ Petition for Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), Respondent’s Motion to Dismiss (Doc. 26), 19 Magistrate Judge Jacqueline Marshall’s Report and Recommendation (Doc. 28), and 20 Petitioner’s Objections to the R&R (Doc. 29). After reviewing the record, the Court accepts 21 the R&R and denies Petitioner’s Petition for Writ of Habeas Corpus, grants Respondent’s 22 Motion to Dismiss, denies Petitioner’s pending motions (Docs. 20, 21, and 22), and overrules 23 Petitioner’s objections to the R&R (Doc. 29). 24 The background in this case is thoroughly detailed in the “Background” section of 25 Magistrate Judge Marshall’s R&R. This Court fully incorporates by reference the 26 Background of the R&R into this Order. 27 A district court must review the legal analysis in a Magistrate Judge's Report and 28 Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). In addition, a district court must 1 review the factual analysis in the Report and Recommendation de novo for those facts to 2 which objections are filed. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 3 Cir.2003) (en banc); see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a 4 de novo determination of those portions of the report or specified proposed findings or 5 recommendations to which objection is made”). “Failure to object to a magistrate judge's 6 recommendation waives all objections to the judge's findings of fact.” Jones v. Wood, 207 7 F.3d 557, 562 n. 2 (9th Cir.2000). 8 Having reviewed de novo the Report and Recommendation of Judge Marshall in light 9 of Petitioner’s Objection, the Court finds that the Magistrate Judge correctly determined that 10 the Petitioner’s petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 should 11 be denied as moot and even if considered on the merits, do not warrant relief. Therefore, 12 13 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 28) is accepted and adopted by the court. 14 IT IS FURTHER ORDERED that the Petitioner’s Petition for Writ of Habeas 15 Corpus (Doc. 1) is denied, Respondent’s Motion to Dismiss (Doc. 26) is granted, and 16 Petitioner’s pending motions (Docs. 20, 21, and 22) are denied. 17 18 19 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and close this case. DATED this 10th day of August, 2011. 20 21 22 23 24 25 26 27 28 -2-

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