Allen v. Shartle

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that Magistrate Judge Macdonald's Report and Recommendation (Doc. 22 ) is ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court. It is further Ordered that the Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1 ) is DENIED as MOOT. Signed by Chief Judge Raner C Collins on 4/12/2017. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Julio Allen,

No. CV-16-00543-TUC-RCC
Petitioner,

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v.

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ORDER

JT Shartle,

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Respondent.

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Pending before the Court is Julio Allen’s pro se Petition for Writ of Habeas

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Corpus, filed pursuant to 28 U.S.C. §2241 (“the Petition”). Doc. 1. Respondent has filed

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his Return and Answer to the Petition (Doc. 15) and Petitioner Responded thereto (Doc.

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16. Also before the Court is Magistrate Judge Bruce G. Macdonald’s February 21, 2017

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Report and Recommendation (“R&R”). Doc. 22. No objections to the R&R were filed1.

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The Court accepts and adopts Magistrate Judge Macdonald’s R & R (Doc. 22) as

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the findings of fact and conclusions of law of this Court and will deny the Petition (Doc.

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1) as moot.

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I.

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Factual and Procedural Background
The factual and procedural background in this case is thoroughly detailed in the R

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The Court acknowledges that the Petitioner’s copy of the R&R was mailed to
him at his last known address, but that the R&R was returned as “undeliverable” mail on
March 15, 2017. See Docs. 22 (delivery receipt); 23. The Court previously and
explicitly informed the Petitioner that he must file and serve a notice of change of address
in the event he moves and that “failure to comply may result in dismissal of this action,”
see doc. 9 at 4:4-7. Regardless, no such notice has been filed.

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& R. See Doc. 22 at 2. This Court fully incorporates by reference the “Background”

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section of the R & R into this Order.

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II.

Discussion

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

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of the Federal Rules of Civil Procedure. The district court may “accept, reject, or modify

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

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magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

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

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

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

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

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

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(9th Cir. 2003) (en banc). Therefore to the extent that no objection has been made,

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arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187

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(9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal);

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see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States

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Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the

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court need only satisfy itself that there is no clear error on the face of the record in order

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to accept the recommendation).

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The Court will not disturb a magistrate judge’s order unless his factual findings

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are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. §

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636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the

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district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to

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raise an objection waives all objections to the magistrate judge’s findings of fact. Turner

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v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s

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conclusion “is a factor to be weighed in considering the propriety of finding waiver of an

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issue on appeal.” Id. (internal citations omitted).

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Here, the parties have not objected to the R & R (Doc. 22), which relieves the

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Court of its obligation to review. See Reyna-Tapia, 328 F.3d at 1121 (9th Cir. 2003);

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Thomas, 474 U.S. at 149 (1985) (“[Section 636(b)(1) ] does not ... require any review at

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all ... of any issue that is not the subject of an objection.”); Fed.R.Civ.P. 72(b)(3) (“The

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district judge must determine de novo any part of the magistrate judge's disposition that

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has been properly objected to.”). This Court considers the R & R to be thorough and

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well-reasoned. After a thorough and de novo review of the record, the Court will adopt

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the R & R of Magistrate Judge Macdonald (Doc. 22).

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Accordingly,

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IT IS HEREBY ORDERED that Magistrate Judge Macdonald’s Report and

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Recommendation (Doc. 22) is ACCEPTED and ADOPTED as the findings of fact and

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conclusions of law by this Court.

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IT IS FURTHER ORDERED the Petition Under 28 U.S.C. § 2241 for a Writ of
Habeas Corpus by a Person in Federal Custody (Doc. 1) is DENIED as MOOT.
Dated this 12th day of April, 2017.

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