Achter v. Brewer et al

Filing 24

ORDER ADOPTING 23 Report and Recommendations. It is further ordered Petitioners Amended Petition for Writ of Habeas Corpus (Doc. 11) is denied without leave to amend, and this action is dismissed with prejudice, and the Clerk shall enter judgment and close this case. Signed by Judge Raner C Collins on 06/06/12. (LMF)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Leslie Allen Achter,
Petitioner,

10
11

vs.

12
Craig Apker,
13
Respondent.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 11-512-TUC-RCC
ORDER

15
16

Pending before the Court is Petitioner Leslie Allen Achter’s Amended Petition for

17

Writ of Habeas Corpus (Doc. 11) and Magistrate Judge Hector Estrada’s Report and

18

Recommendation (R&R) (Doc. 23). The Court accepts and adopts Magistrate Judge

19

Estrada’s R&R (Doc. 23) as the findings of fact and conclusions of law of this Court and

20

denies Petitioner’s Amended Petition for Writ of Habeas Corpus (Doc. 11).

21

I.

22
23
24
25
26
27
28

Background
This Court fully incorporates by reference the “Factual & Procedural Background”

section of the R & R into this order.
On October 28, 2011, Petitioner filed his Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (Doc. 11). Respondent filed an Answer on January 3, 2012
(Doc. 21). Magistrate Judge Estrada filed a R&R recommending that Petitioner’s habeas
petition be denied in full (Doc. 23). Petitioner did not file a response to the R&R within the

1

allotted time.

2

II.

3
4
5
6
7

Discussion
The duties of the district court in connection with a R & R are set forth in Rule 72 of

the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court may
“accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions. FED.R.CIV.P. 72(b)(3); 28 U.S.C. §
636(b)(1).

8
9
10
11
12
13
14
15
16
17
18
19
20

Where the parties object to a R & R, “[a] judge of the [district] court shall make a de
novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C.
§ 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
When no objection is filed, the district court need not review the R & R de novo. Wang v.
Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d
1114, 1121-22 (9th Cir.2003) (en banc). Therefore to the extent that no objection has been
made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187
(9th Cir.1980) (failure to object to Magistrate's report waives right to do so on appeal); see
also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir.1974) (when no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation).

21

The Court will not disturb a Magistrate Judge's Order unless his factual findings are

22

clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A).

23

“[T]he magistrate judge's decision ... is entitled to great deference by the district court.”

24

United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001). A failure to raise an

25

objection waives all objections to the magistrate judge’s findings of fact. Turner v. Duncan,

26

158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s conclusion “is

27

a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.”

28

Id. (internal citations omitted).
-2-

1

Petitioner has filed no objections to the R&R (Doc. 23). The parties have not

2

objected to this recommendation, which relieves the Court of its obligation to review. See

3

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003); Thomas v. Arn, 474 U.S.

4

140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“[Section 636(b)(1) ] does not ... require

5

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

6

72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's

7

disposition that has been properly objected to.”). This Court considers the R&R to be

8

thorough and well-reasoned. After a thorough and de novo review of the record, the Court

9

will ADOPT the R&R of Magistrate Judge Estrada (Doc. 23).

10
11
12
13

Accordingly,
IT IS HEREBY ORDERED that Magistrate Judge Estrada’s Report and
Recommendation (Doc. 23) is hereby ACCEPTED and ADOPTED as the findings of fact
and conclusions of law by this Court.

14
15
16
17
18

IT IS FURTHER ORDERED Petitioner’s Amended Petition for Writ of Habeas
Corpus (Doc. 11) is denied without leave to amend, and this action is dismissed with
prejudice, and the Clerk shall enter judgment and close this case.
DATED this 6th day of June, 2012.

19
20
21
22
23
24
25
26
27
28
-3-