Jimenez-Marcial v. USA

Filing 7

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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Valerano Jimenez-Marcial,
Petitioner,

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No. CV-14-02117-TUC-GMS
ORDER

v.
USA,
Respondent.

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Pending before the Court are Petitioner’s Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and United States

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Magistrate Judge Michelle H. Burns’ Report and Recommendation (“R&R”). Docs. 1, 6.

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The R&R recommends that the Court deny the motion and dismiss without prejudice.

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Doc. 6 at 7. The Magistrate Judge advised the parties that they had fourteen days to file

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objections to the R&R and that failure to file timely objections could be considered a

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waiver of the right to obtain review of the R&R. Id. at 7 (citing Fed. R. Civ. P. 72, 6(a),

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6(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).

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The parties did not file objections, which relieves the Court of its obligation to

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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149

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(1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is

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not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-

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taken.

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prejudice. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or

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modify, in whole or in part, the findings or recommendations made by the magistrate”);

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Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or modify the

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recommended disposition; receive further evidence; or return the matter to the magistrate

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judge with instructions.”).

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IT IS ORDERED:

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1.

Magistrate Judge Burns’ R&R (Doc. 6) is accepted.

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2.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is

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The Court will accept the R&R and deny the motion and dismiss without

denied and dismissed without prejudice.

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3.

The Clerk of Court shall terminate this action.

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4.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the

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event Movant files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 28th day of April, 2015.

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Honorable G. Murray Snow
United States District Judge

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