Soules v. McClintock

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that Magistrate Judge Markovich's 11 Report and Recommendation is accepted and adopted. It is further Ordered Petitioner's Petition Under § 2241 for Writ of Habeas Corpus (Doc. 1 ) is denied as moot without leave to amend, and this action is dismissed with prejudice. The Clerk of the Court shall enter judgment and close this case. Signed by Chief Judge Raner C Collins on 9/9/2014. (MFR)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wayne J. Soules, No. CV-13-00082-TUC-RCC Petitioner, 10 11 v. 12 ORDER Susan McClintock, Warden, 13 Respondent. 14 Pending before the Court is Petitioner Wayne J. Soules’s Petition Under § 2241 15 for Writ of Habeas Corpus (Doc. 1) and Magistrate Judge Eric J. Markovich’s Report and 16 Recommendation (R & R) (Doc. 11). The parties did not file objections to Judge 17 Markovich’s R & R. The Court accepts and adopts Magistrate Judge Markovich’s June 18 25, 2014 R & R as the findings of fact and conclusions of law of this Court and denies 19 Petitioner’s Petition for Writ of Habeas Corpus. 20 I. Background 21 The factual and procedural background in this case is thoroughly detailed in 22 Magistrate Judge Markovich’s R & R (Doc. 11). This Court fully incorporates by 23 reference the “Factual Background” section of the R & R into this Order. 24 II. Discussion 25 The duties of the district court in connection with a R & R are set forth in Rule 72 26 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court 27 may “accept, reject, or modify the recommended disposition; receive further evidence; or 28 return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 1 U.S.C. § 636(b)(1). 2 Where the parties object to an R & R, “[a] judge of the [district] court shall make a 3 de novo determination of those portions of the [R & R] to which objection is made.” 28 4 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection 5 is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 6 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 7 (9th Cir. 2003) (en banc). Therefore, to the extent that no objection is made, arguments to 8 the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) 9 (failure to object to Magistrate’s report waives right to do so on appeal); see also, 10 Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. 11 Court, 501 F.2d 196, 206 (9th Cir.1974) (when no timely objection is filed, the court 12 need only satisfy itself that there is no clear error on the face of the record in order to 13 accept the recommendation). 14 The Court will not disturb a magistrate judge’s order unless his factual findings 15 are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 16 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the 17 district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to 18 raise an objection waives all objections to the magistrate judge’s findings of fact. Turner 19 v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s 20 conclusion “is a factor to be weighed in considering the propriety of finding waiver of an 21 issue on appeal.” Id. (internal citations omitted). 22 The parties have not objected to the R & R (Doc. 11), which relieves the Court of 23 its obligation to review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 24 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1) ] does not ... 25 require any review at all ... of any issue that is not the subject of an objection.”); 26 Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the 27 magistrate judge's disposition that has been properly objected to.”). This Court considers 28 the R & R to be thorough and well-reasoned. After a thorough and de novo review of the -2- 1 record, the Court will adopt Magistrate Judge Markovich’s R & R (Doc. 11). 2 III. Conclusion 3 Accordingly, 4 IT IS HEREBY ORDERED that Magistrate Judge Markovich’s Report and 5 Recommendation (Doc. 11) is ACCEPTED and ADOPTED as the findings of fact and 6 conclusions of law by this Court; 7 IT IS FURTHER ORDERED Petitioner’s Petition Under § 2241 for Writ of 8 Habeas Corpus (Doc. 1) is denied as moot without leave to amend, and this action is 9 dismissed with prejudice. The Clerk of the Court shall enter judgment and close this 10 11 case. DATED this 9th day of September, 2014. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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