Sterling v. Apker

Filing 30

ORDER ADOPTING 27 Report and Recommendations, Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is denied and dismissed with prejudice. Signed by Judge Raner C Collins on 7/18/11. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David J. Sterling,
Plaintiff,

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vs.

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Craig Apker, Complex Warden,
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Defendant.
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No. CV10-250-TUC-RCC
ORDER

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Pending before the Court is a Report and Recommendation issued by Magistrate
Judge Edmonds whereby she recommends denying Petitioner’s § 2241 petition.

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The duties of the district court in connection with a R & R by a Magistrate Judge are

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set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The

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district court may “accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1).

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Where the parties object to a R & R, “[a] judge of the [district] court shall make a de novo

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determination of those portions of the [R & R] to which an objection is made.” 28 U.S.C. §

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636(b)(1); Thomas v. Arn, 474 U.S. 140, 149–150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

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This district court's ruling is a de novo determination as to those portions of the R &

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R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir.2005); United States v. Reyna–Tapia, 328 F.3d 1114, 1121–22 (9th

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Cir.2003) (en banc). To the extent that no objection has been made, arguments to the contrary

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have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they

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are not filed within fourteen days of service of the Report and Recommendation), see also

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McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980) (failure to object to Magistrate's

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report waives right to do so on appeal); Advisory Committee Notes to Fed.R.Civ.P. 72 (citing

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Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974) (when no timely

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objection is filed, the court need only satisfy itself that there is no clear error on the face of

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the record in order to accept the recommendation).

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The parties were sent copies of the R & R and instructed that, pursuant to 28 U.S.C.

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§ 636(b)(1), they had 14 days to file written objections. Fed.R.Civ.P. 72. The Court has

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considered the Objection filed by the Petitioner, the R&R, and the parties' documents

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considered by the Magistrate Judge with respect to the Objections.

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Having reviewed de novo the Petition, the Report and Recommendation of Magistrate

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Judge Edmonds, and Petitioner’s objections thereto, the Court finds that Petitioner’s

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objections lack merit. As thoroughly explained by Magistrate Judge Edmonds and as

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dictated by controlling authority, Petitioner is not entitled to the relief he is seeking in his §

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2241 petition. The Court agrees with the Magistrate Judge’s determination. Upon review

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of Petitioner’s objections, he simply reiterates arguments raised in his initial petition and has

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failed to point to any legitimate errors committed by the Magistrate Judge in her R&R. As

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such, Petitioner’s objections are rejected and his § 2241 petition must be denied.

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Accordingly, IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendation (Doc. 27) is accepted and adopted by the Court.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus

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(Doc. 1) is denied and dismissed with prejudice.

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DATED this 18th day of July, 2011.

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