Gasaway v. Winn

Filing 28

ORDER ADOPTING 27 REPORT AND RECOMMENDATION as the findings of fact and conclusions of law by this Court. IT IS FURTHER ORDERED that Petitioner's Petition Under 28 U.S.C. § 2241 For A Writ Of Habeas Corpus By A Person In Federal Custody (Doc. 1) is DENIED. The Clerk of the Court is directed to enter judgment accordingly and close its file in this matter. Signed by Chief Judge Raner C Collins on 6/27/16.(BAC)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Edmond Gasaway, Petitioner, 11 12 ORDER v. 13 No. CV-13-00905-TUC-RCC Louis W Winn, Jr., 14 Respondent. 15 16 Pending before the Court are pro se Petitioner Edmond Gasaway’s Petition Under 17 28 U.S.C. § 2241 For A Writ Of Habeas Corpus By A Person In Federal Custody (Doc. 18 1), Respondent’s Return and Answer (Doc. 17, Answer), Petitioner’s Response to 19 Government’s Motion to Dismiss Petitioner’s Writ of Habeas Corpus (Doc. 20, Reply), 20 and Magistrate Judge Charles R. Pyle’s Report and Recommendation (“R & R”) (Doc. 21 27). The parties did not file objections to Judge Pyle’s R & R. The Court accepts and 22 adopts Magistrate Judge Pyle’s May 25, 2016 R & R (Doc. 27) as the findings of fact and 23 conclusions of law of this Court and will deny the Petition Under 28 U.S.C. § 2241 For A 24 Writ Of Habeas Corpus By A Person In Federal Custody (Doc. 1). 25 I. Background 26 The factual and procedural background in this case is thoroughly detailed in 27 Magistrate Judge Pyle’s R & R (Doc. 27). This Court fully incorporates by reference the 28 “Background” section of the R & R into this Order. 1 II. Discussion 2 The duties of the district court in connection with a R & R are set forth in Rule 72 3 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court 4 may “accept, reject, or modify the recommended disposition; receive further evidence; or 5 return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 6 U.S.C. § 636(b)(1). 7 Where the parties object to an R & R, “[a] judge of the [district] court shall make a 8 de novo determination of those portions of the [R & R] to which objection is made.” 28 9 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection 10 is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 11 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 12 (9th Cir. 2003) (en banc). Therefore to the extent that no objection has been made, 13 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); 15 see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States 16 Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the 17 court need only satisfy itself that there is no clear error on the face of the record in order 18 to accept the recommendation). 19 The Court will not disturb a magistrate judge’s order unless his factual findings 20 are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 21 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the 22 district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to 23 raise an objection waives all objections to the magistrate judge’s findings of fact. Turner 24 v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s 25 conclusion “is a factor to be weighed in considering the propriety of finding waiver of an 26 issue on appeal.” Id. (internal citations omitted). 27 Here, the parties have not objected to the R & R (Doc. 27), which relieves the 28 Court of its obligation to review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 -2- 1 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1) ] does not 2 ... require any review at all ... of any issue that is not the subject of an objection.”); 3 Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the 4 magistrate judge's disposition that has been properly objected to.”). This Court considers 5 the R & R to be thorough and well-reasoned. After a thorough and de novo review of the 6 record, the Court will apdot the R & R of Magistrate Judge Pyle (Doc. 27). 7 Accordingly, 8 IT IS HEREBY ORDERED that Magistrate Judge Pyle’s Report and 9 Recommendation (Doc. 27) is ACCEPTED and ADOPTED as the findings of fact and 10 conclusions of law by this Court. 11 IT IS FURTHER ORDERED that Petitioner’s Petition Under 28 U.S.C. § 2241 12 For A Writ Of Habeas Corpus By A Person In Federal Custody (Doc. 1) is DENIED. 13 The Clerk of the Court is directed to enter judgment accordingly and close its file in this 14 matter. 15 Dated this 27th day of June, 2016. 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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