Wieber v. Ryan et al

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS 12 . Wieber's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody is DISMISSED. The Clerk of the Court shall enter judgment and shall then close its file in this matter. A Certificate of Appealability shall not issue in this case. Signed by Judge Cindy K Jorgenson on 9/6/11. (See attached PDF for complete information.)(KAH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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MICHAEL JOSEPH WIEBER ,
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Petitioner,
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vs.
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CHARLES L. RYAN,
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Respondent.
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No. CIV 11-064-TUC-CKJ (BPV)
ORDER

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On June 28, 2011, Magistrate Judge Bernardo P. Velasco issued a Report and

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Recommendation [Doc. # 12] in which he recommended that the Petition under 28 U.S.C.

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§ 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Michael Joseph

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Wieber (“Wieber”) on January 20, 2011, be dismissed. The magistrate judge advised the

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parties that written objections to the Report and Recommendation were to be filed within

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fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C.

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§ 636(b). No objections have been filed within the time provided.

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Report and Recommendation

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C.

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§ 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then

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this Court is required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” The statute does not “require [] some lesser

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review by [this Court] when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50,

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106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct “any

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review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

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Indeed, the Ninth Circuit has recognized that a district court is not required to review

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a magistrate judge's report and recommendation where no objections have been filed. See

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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of

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review employed by the district court when reviewing a report and recommendation to which

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no objections were made); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz.

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2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district

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courts are not required to review “any issue that is not the subject of an objection.”). In other

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words, if there is no objection to a magistrate judge's recommendation, then this Court may

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accept the recommendation without review. See e.g., Johnstone, 263 F.Supp.2d at 1226

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(accepting, without review, a magistrate judge's recommendation to which no objection was

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filed).

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In this case, Wieber has not filed an objection to the magistrate judge's Report and

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Recommendation. Although Wieber has not filed an objection, the Court has independently

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reviewed the Report and Recommendation and adopts the recommended findings and

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conclusions. The Court will accept the Report and Recommendation and dismiss the

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Petition.

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Certificate of Appealability (“COA”)

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Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the

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“district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.” Such certificates are required in cases concerning detention arising

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“out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking

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a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is

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brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court

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judgment. This Court must determine, therefore, if a COA shall issue.

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The standard for issuing a COA is whether the applicant has “made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy §

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2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district

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court denies a habeas petition on procedural grounds without reaching the prisoner's

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underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

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jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling.” Id. In the certificate, the Court must indicate

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which specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).

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The magistrate judge determined, and this Court accepted, that the Petition is untimely

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under one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act.

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The magistrate judge further determined, and this Court accepted, that the Petition is not

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subject to statutory or equitable tolling. The Court finds that jurists of reason would not find

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it debatable whether the Petition stated a valid claim of the denial of a constitutional right and

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the Court finds that jurists of reason would not find it debatable whether the district court was

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correct in its procedural ruling. A COA shall not issue as to Wieber’s claims.

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Any further request for a COA must be addressed to the Court of Appeals. See Fed.

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R.App. P. 22(b); Ninth Circuit R. 22-1.

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Accordingly, IT IS ORDERED:

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The Report and Recommendation [Doc. # 12] is ADOPTED;

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Wieber's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a

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Person in State Custody is DISMISSED;
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The Clerk of the Court shall enter judgment and shall then close its file in this
matter, and;.
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A Certificate of Appealability shall not issue in this case.

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DATED this 6th day of September, 2011.

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