McRae v. Winn

Filing 22

ORDER ACCEPTING AND ADOPTING 19 REPORT AND RECOMMENDATION in full. IT IS ORDERED that Plaintiff's 21 Motion is DENIED. IT IS FURTHER ORDERED that the 1 Petition Under 28 USC § 2241 for a Writ of Habeus Corpus is denied, and this case is dismissed with prejudice. The Clerk is directed to enter judgment accordingly and close this case. Signed by Judge Rosemary Marquez on 1/27/17.(BAC)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Andre McRae, Petitioner, 10 11 ORDER v. 12 No. CV-13-02103-TUC-RM Louis Winn, Jr., 13 Defendant. 14 15 On November 3, 2016, Magistrate Judge Jacqueline M. Rateau issued a Report 16 and Recommendation (Doc. 19) recommending that this Court deny Petitioner Andre 17 McRae’s Petition for a Writ of Habeus Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 18 2241.1 No objections to the Report and Recommendation were filed. 19 A district judge must “make a de novo determination of those portions” of a 20 magistrate judge’s “report or specified proposed findings or recommendations to which 21 objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule 72(b) 22 of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is filed, 23 the court need only satisfy itself that there is no clear error on the face of the record in 24 order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) 25 advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 26 1 27 28 Petitioner filed a Motion in this matter regarding his non-receipt of a Scheduling Order for a separate matter in which he is Plaintiff. (See Doc. 21 (captioned 4:13-CV02103-RM, but referring to the docket in 4:15-CV-439-RM).) Petitioner requested the Clerk send him a copy of the Order, which has already been done. Accordingly, the Court will deny Petitioner’s Motion (Doc. 21). 1 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the 2 district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, 3 CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for 4 clear error unobjected-to portions of Report and Recommendation). 5 The Court has reviewed Judge Rateau’s Report and Recommendation, the parties’ 6 briefs, and the record. The Court finds no error in Judge Rateau’s Report and 7 Recommendation. 8 Because Petitioner is a federal prisoner whose petition can legitimately be brought 9 under § 2241, he is not required to obtain a certificate of appealability. Harrison v. 10 Ollison, 519 F.3d 952, 958 (9th Cir. 2008); Herron v. Winn, No. CV-13-00358-TUC- 11 JGZ, 2015 WL 5648001, at *1 (D. Ariz. 2015). 12 Accordingly, 13 IT IS ORDERED that Plaintiff’s Motion (Doc. 21) is denied. 14 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 19) is 15 accepted and adopted in full. 16 IT IS FURTHER ORDERED that the Petition Under 28 U.S.C. § 2241 for a 17 Writ of Habeus Corpus (Doc. 1) is denied, and this case is dismissed with prejudice. 18 The Clerk of Court is directed to enter judgment accordingly and close this case. 19 Dated this 27th day of January, 2017. 20 21 22 Honorable Rosemary Márquez United States District Judge 23 24 25 26 27 28 -2-

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