Galindo v. Ryan et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Pyle's Report and Recommendation (Doc. 14 ) is accepted and adopted as the findings of fact and conclusions of law by this Court. It is further Ordered that the Petition for Writ of Habeas Corpus (Doc. 1 ) is dismissed as procedurally defaulted with regard to Grounds 2 and 3, and the Petition is denied on the merits with regard to Ground 1. In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in t he event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's ruling debatable. The Clerk of the Court is directed to close this case. Signed by Chief Judge Raner C Collins on 11/7/2014.(MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ricardo Omar Galindo,
Petitioner,

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ORDER

v.

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No. CV-12-00462-TUC-RCC

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner’s pro se Petition for Writ of Habeas Corpus

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filed pursuant to 28 U.S.C. § 2254 (Doc. 1), and Magistrate Judge Charles R. Pyle’s

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Report and Recommendation (R & R) (Doc. 14). The parties did not file objections to

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Judge Pyle’s R & R. The Court accepts and adopts Magistrate Judge Pyle’s August 15,

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2014 R & R as the findings of fact and conclusions of law of this Court and denies

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Petitioner’s Petition for Writ of Habeas Corpus.

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I.

Background

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The factual and procedural background in this case is thoroughly detailed in

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Magistrate Judge Pyle’s R & R (Doc. 14). This Court fully incorporates by reference the

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“Factual & Procedural Background” section of the R & R into this Order.

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II.

Discussion

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

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of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court

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may “accept, reject, or modify the recommended disposition; receive further evidence; or

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return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28

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U.S.C. § 636(b)(1).

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

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de novo determination of those portions of the [R & R] to which objection is made.” 28

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U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection

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is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d

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992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22

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(9th Cir. 2003) (en banc). Therefore, to the extent that no objection has been made,

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arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187

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(9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal);

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see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States

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Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the

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court need only satisfy itself that there is no clear error on the face of the record in order

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to accept the recommendation).

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The Court will not disturb a magistrate judge’s order unless his factual findings

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are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. §

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636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the

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district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to

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raise an objection waives all objections to the magistrate judge’s findings of fact. Turner

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

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conclusion “is a factor to be weighed in considering the propriety of finding waiver of an

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issue on appeal.” Id. (internal citations omitted).

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Here, the parties have not objected to the R & R (Doc. 14), which relieves the

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Court of its obligation to review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121

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(9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1) ] does not

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... require any review at all ... of any issue that is not the subject of an objection.”);

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Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the

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magistrate judge's disposition that has been properly objected to.”). This Court considers

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the R & R to be thorough and well-reasoned. After a thorough and de novo review of the

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record, the Court will adopt the R & R of Magistrate Judge Pyle (Doc. 14).

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Accordingly,

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IT IS HEREBY ORDERED that Magistrate Judge Pyle’s Report and

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Recommendation (Doc. 14) is accepted and adopted as the findings of fact and

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conclusions of law by this Court.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc.

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1) is dismissed as procedurally defaulted with regard to Grounds 2 and 3, and the Petition

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is denied on the merits with regard to Ground 1. In addition, pursuant to Rule 11(a) of

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the Rules Governing Section 2254 Cases, in the event Movant files an appeal, the Court

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declines to issue a certificate of appealability because reasonable jurists would not find

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the Court’s ruling debatable. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

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473, 484 (2000). The Clerk of the Court is directed to close this case.

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DATED this 7th day of November, 2014.

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