Montijo v. Ryan et al

Filing 20

ORDER adopting re 19 Report and Recommendations.It is further ordered Petitioners Petition for Writ of Habeas Corpus (Doc.1) 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 01/09/13.(LMF)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Enrique Montijo, Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. 11-CV-592-TUC-RCC (LAB) ORDER 15 16 Pending before the Court is Petitioner Robert Taylor Harden’s Petition for Writ of 17 Habeas Corpus (Doc. 1) and Magistrate Judge Leslie A. Bowman’s Report and 18 Recommendation (R&R) (Doc. 19). The Court accepts and adopts Magistrate Judge 19 Bowman’s R&R as the findings of fact and conclusions of law of this Court and denies 20 Petitioner’s Petition for Writ of Habeas Corpus. 21 I. 22 23 BACKGROUND This Court fully incorporates by reference the “Summary of the Case” section of the R&R into this order. 24 On September 19, 2011, Petitioner filed his Petition for Writ of Habeas Corpus 25 pursuant to 28 U.S.C. § 2241 (Doc. 1). Respondents filed an Answer on February 2, 2012 26 (Doc. 12). Magistrate Judge Bowman filed a R&R recommending that Petitioner’s habeas 27 petition be denied in full (Doc. 19). Petitioner did not file a response to the R&R within the 28 allotted time. 1 II. DISCUSSION 2 The duties of the district court in connection with a R&R are set forth in Rule 72 of 3 the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court may 4 “accept, reject, or modify the recommended disposition; receive further evidence; or return 5 the matter to the magistrate judge with instructions. FED.R.CIV.P. 72(b)(3); 28 U.S.C. § 6 636(b)(1). 7 Where the parties object to a R&R, “[a] judge of the [district] court shall make a de 8 novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. 9 § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). 10 When no objection is filed, the district court need not review the R&R de novo. Wang v. 11 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 12 1114, 1121-22 (9th Cir.2003) (en banc). Therefore to the extent that no objection has been 13 made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 14 (9th Cir.1980) (failure to object to Magistrate's report waives right to do so on appeal); see 15 also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. 16 Court, 501 F.2d 196, 206 (9th Cir.1974) (when no timely objection is filed, the court need 17 only satisfy itself that there is no clear error on the face of the record in order to accept the 18 recommendation). 19 The Court will not disturb a Magistrate Judge’s Order unless his factual findings are 20 clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A). 21 “[T]he magistrate judge's decision ... is entitled to great deference by the district court.” 22 United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001). A failure to raise an 23 objection waives all objections to the magistrate judge’s findings of fact. Turner v. Duncan, 24 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s conclusion “is 25 a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” 26 Id. (internal citations omitted). 27 This Court considers the R&R to be thorough and well-reasoned. Petitioner had until 28 January 1, 2013 to file objections to the R&R. To date, Petitioner has filed no objections, -2- 1 which relieves the Court of its obligation to review. See United States v. Reyna-Tapia, 328 2 F.3d 1114, 1121 (9th Cir.2003); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 3 L.Ed.2d 435 (1985) (“[Section 636(b)(1) ] does not ... require any review at all ... of any issue 4 that is not the subject of an objection.”); Fed.R.Civ.P. 72(b)(3) (“The district judge must 5 determine de novo any part of the magistrate judge's disposition that has been properly 6 objected to.”). Despite Petitioner’s failure to file objections, the Court nevertheless conducted 7 its own review of the entire record and agrees with the conclusions of Magistrate Judge 8 Bowman. 9 Accordingly, 10 IT IS HEREBY ORDERED that Magistrate Judge Bowman’s Report and 11 Recommendation (Doc. 19) is hereby ACCEPTED and ADOPTED as the findings of fact 12 and conclusions of law by this Court; 13 IT IS FURTHER ORDERED Petitioner’s Petition for Writ of Habeas Corpus (Doc. 14 1) is denied without leave to amend, and this action is dismissed with prejudice, and the 15 Clerk shall enter judgment and close this case. 16 DATED this 9th day of January, 2013. 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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