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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julio Allen, No. CV-16-00543-TUC-RCC Petitioner, 10 11 v. 12 ORDER JT Shartle, 13 Respondent. 14 15 Pending before the Court is Julio Allen’s pro se Petition for Writ of Habeas 16 Corpus, filed pursuant to 28 U.S.C. §2241 (“the Petition”). Doc. 1. Respondent has filed 17 his Return and Answer to the Petition (Doc. 15) and Petitioner Responded thereto (Doc. 18 16. Also before the Court is Magistrate Judge Bruce G. Macdonald’s February 21, 2017 19 Report and Recommendation (“R&R”). Doc. 22. No objections to the R&R were filed1. 20 The Court accepts and adopts Magistrate Judge Macdonald’s R & R (Doc. 22) as 21 the findings of fact and conclusions of law of this Court and will deny the Petition (Doc. 22 1) as moot. 23 I. 24 Factual and Procedural Background The factual and procedural background in this case is thoroughly detailed in the R 25 26 27 28 1 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. 1 & R. See Doc. 22 at 2. This Court fully incorporates by reference the “Background” 2 section of the R & R into this Order. 3 II. Discussion 4 The duties of the district court in connection with a R & R are set forth in Rule 72 5 of the Federal Rules of Civil Procedure. The district court may “accept, reject, or modify 6 the recommended disposition; receive further evidence; or return the matter to the 7 magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). 8 Where the parties object to an R & R, “[a] judge of the [district] court shall make a 9 de novo determination of those portions of the [R & R] to which objection is made.” 28 10 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection 11 is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d 12 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 13 (9th Cir. 2003) (en banc). Therefore to the extent that no objection has been made, 14 arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 15 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); 16 see also, Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States 17 Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the 18 court need only satisfy itself that there is no clear error on the face of the record in order 19 to accept the recommendation). 20 The Court will not disturb a magistrate judge’s order unless his factual findings 21 are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 22 636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the 23 district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to 24 raise an objection waives all objections to the magistrate judge’s findings of fact. Turner 25 v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge’s 26 conclusion “is a factor to be weighed in considering the propriety of finding waiver of an 27 issue on appeal.” Id. (internal citations omitted). 28 Here, the parties have not objected to the R & R (Doc. 22), which relieves the -2- 1 Court of its obligation to review. See Reyna-Tapia, 328 F.3d at 1121 (9th Cir. 2003); 2 Thomas, 474 U.S. at 149 (1985) (“[Section 636(b)(1) ] does not ... require any review at 3 all ... of any issue that is not the subject of an objection.”); Fed.R.Civ.P. 72(b)(3) (“The 4 district judge must determine de novo any part of the magistrate judge's disposition that 5 has been properly objected to.”). This Court considers the R & R to be thorough and 6 well-reasoned. After a thorough and de novo review of the record, the Court will adopt 7 the R & R of Magistrate Judge Macdonald (Doc. 22). 8 Accordingly, 9 IT IS HEREBY ORDERED that Magistrate Judge Macdonald’s Report and 10 Recommendation (Doc. 22) is ACCEPTED and ADOPTED as the findings of fact and 11 conclusions of law by this Court. 12 13 14 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. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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