McMonigal #115328 v. Ryan et al

Filing 28

ORDERED that Magistrate Judge D. Thomas Ferraro's Report and Recommendation is ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court. Doc. 27 IT IS FURTHER ORDERED that Howard Ned McMonigal, III's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is dismissed. Signed by Chief Judge Raner C Collins on 11/4/2016.(DLC)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Howard Ned McMonigal, III,
Petitioner,

10
11

ORDER

v.

12

No. CV-15-00134-TUC-RCC

Charles L Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is Petitioner Howard Ned McMonigal, III’s Petition for

16

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Magistrate Judge D. Thomas

17

Ferraro’s Report and Recommendation (R & R). Docs. 1 and 27. The parties did not file

18

objections to Magistrate Judge Ferraro’s R & R. The Court accepts and adopts Magistrate

19

Judge Ferraro’s R & R as the findings of fact and conclusions of law of this Court and

20

denies Petitioner’s Writ.

21

I.

Background

22

The factual and procedural background in this case is thoroughly detailed in

23

Magistrate Judge Ferraro’s R & R. The Court fully incorporates the “Factual and

24

Procedural Background” section of the R & R into this Order.

25

II.

Discussion

26

The duties of the district court in connection with a R & R are set forth in Rule 72

27

of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may

28

“accept, reject, or modify the recommended disposition; receive further evidence; or

1

return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28

2

U.S.C. § 636(b)(1).

3

Where the parties object to an R & R, “[a] judge of the [district] court shall make a

4

de novo determination of those portions of the [R & R] to which objection is made.” 28

5

U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection

6

is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d

7

992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22

8

(9th Cir. 2003) (en banc). The Court will not disturb a magistrate judge’s order unless his

9

factual findings are clearly erroneous or his legal conclusions are contrary to law. 28

10

U.S.C. § 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference

11

by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.

12

2001). A failure to raise an objection waives all objections to the magistrate judge’s

13

findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object

14

to a Magistrate Judge’s conclusion “is a factor to be weighed in considering the propriety

15

of finding waiver of an issue on appeal.” Id. (internal citations omitted).

16

Here, the parties have not objected to the R & R, which relieves the Court of its

17

obligation to review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

18

2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1) ] does not ...

19

require any review at all ... of any issue that is not the subject of an objection.”);

20

Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the

21

magistrate judge's disposition that has been properly objected to.”). This Court considers

22

the R & R to be thorough and well-reasoned. After a thorough and de novo review of the

23

record, the Court adopts Magistrate Judge D. Thomas Ferraro’s R & R.

24

…

25

…

26

…

27

…

28

…

-2-

1

Accordingly,

2

IT IS HEREBY ORDERED that Magistrate Judge D. Thomas Ferraro’s Report

3

and Recommendation is ACCEPTED and ADOPTED as the findings of fact and

4

conclusions of law by this Court. Doc. 27

5
6
7

IT IS FURTHER ORDERED that Howard Ned McMonigal, III’s Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is dismissed. Doc. 1.
Dated this 4th day of November, 2016.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-