Jimenez-Marcial v. USA
ORDER ADOPTING 6 Magistrate Judge Burns' Report and Recommendation. Petitioner's Motion to Vacate, Set Aside or Correct Sentence 1 is denied and dismissed without prejudice. The Clerk shall terminate this action. Pursuant to Rule 11(a ) of the Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Courts procedural ruling debatable. Signed by Judge G Murray Snow on 4/28/2015. (ACL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Pending before the Court are Petitioner’s Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and United States
Magistrate Judge Michelle H. Burns’ Report and Recommendation (“R&R”). Docs. 1, 6.
The R&R recommends that the Court deny the motion and dismiss without prejudice.
Doc. 6 at 7. The Magistrate Judge advised the parties that they had fourteen days to file
objections to the R&R and that failure to file timely objections could be considered a
waiver of the right to obtain review of the R&R. Id. at 7 (citing Fed. R. Civ. P. 72, 6(a),
6(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).
The parties did not file objections, which relieves the Court of its obligation to
review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149
(1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is
not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly
objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-
prejudice. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate”);
Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.”).
IT IS ORDERED:
Magistrate Judge Burns’ R&R (Doc. 6) is accepted.
Petitioner’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is
The Court will accept the R&R and deny the motion and dismiss without
denied and dismissed without prejudice.
The Clerk of Court shall terminate this action.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the
event Movant files an appeal, the Court declines to issue a certificate of appealability
because reasonable jurists would not find the Court’s procedural ruling debatable. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 28th day of April, 2015.
Honorable G. Murray Snow
United States District Judge
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