Greer v. Graber

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS. 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 08/07/12. (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 Prentice Greer, Petitioner, 10 11 vs. 12 Conrad M. Graber, Warden, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. 12-CV-72-TUC-RCC ORDER 15 16 Pending before the Court is Petitioner Prentice Greer’s Petition for Writ of Habeas 17 Corpus (Doc. 1) and Magistrate Judge D. Thomas Ferraro’s Report and Recommendation 18 (R&R) (Doc. 11). The Court accepts and adopts Magistrate Judge Ferraro’s July 13, 2012 19 R&R (Doc. 11) as the findings of fact and conclusions of law of this Court and denies 20 Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1). 21 This Court fully incorporates by reference the Background section of the R & R into 22 this Order. Petitioner filed his Petitioner for Writ of Habeas Corpus pursuant to 28 U.S.C. 23 § 2241 (Doc. 1) on January 30, 2012. Respondent timely responded and Magistrate Judge 24 Ferraro issued an R&R recommending that this dismiss the petition. No objections have 25 been filed. 26 The duties of the district court in connection with a R&R are set forth in Rule 72 of 27 the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court may 28 “accept, reject, or modify the recommended disposition; receive further evidence; or return 1 the matter to the magistrate judge with instructions. FED.R.CIV.P. 72(b)(3); 28 U.S.C. § 2 636(b)(1). 3 Where the parties object to a R&R, “[a] judge of the [district] court shall make a de 4 novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. 5 § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). 6 When no objection is filed, the district court need not review the R&R de novo. Wang v. 7 Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 8 1114, 1121-22 (9th Cir.2003) (en banc). Therefore to the extent that no objection has been 9 made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 10 (9th Cir.1980) (failure to object to Magistrate's report waives right to do so on appeal); see 11 also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. 12 Court, 501 F.2d 196, 206 (9th Cir.1974) (when no timely objection is filed, the court need 13 only satisfy itself that there is no clear error on the face of the record in order to accept the 14 recommendation). 15 The Court will not disturb a Magistrate Judge's Order unless his factual findings are 16 clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A). 17 “[T]he magistrate judge's decision ... is entitled to great deference by the district court.” 18 United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001). A failure to raise an 19 objection waives all objections to the magistrate judge’s findings of fact. Turner v. Duncan, 20 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s conclusion “is 21 a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” 22 Id. (internal citations omitted). 23 The parties have filed no objections to the R&R (Doc. 11), which relieves the Court 24 of its obligation to review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 25 Cir.2003); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) 26 (“[Section 636(b)(1) ] does not ... require any review at all ... of any issue that is not the 27 subject of an objection.”); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo 28 any part of the magistrate judge's disposition that has been properly objected to.”). This Court -2- 1 considers the R&R to be thorough and well-reasoned. After a thorough and de novo review 2 of the record, the Court will ADOPT the R&R of Magistrate Judge Ferraro (Doc. 11). 3 Accordingly, 4 IT IS HEREBY ORDERED that Magistrate Judge Ferraro’s Report and 5 Recommendation (Doc. 11) is hereby ACCEPTED and ADOPTED as the findings of fact 6 and conclusions of law by this Court; 7 IT IS FURTHER ORDERED Petitioner’s Petition for Writ of Habeas Corpus (Doc. 8 1) is denied without leave to amend, and this action is dismissed with prejudice, and the 9 Clerk shall enter judgment and close this case. 10 DATED this 7th day of August, 2012. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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