Flores v. Ryan et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION: 31 Report and Recommendation, IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus is DENIED. Doc. 1 ; IT IS FURTHER ORDERED that the Report and Recommendation Doc. 31 prepared by Magistrate Judge Rateau is accepted and adopted as the findings of fact and conclusions of law of this Court. The Clerk of Court is directed to close the case. That Respondents' motion to strike Doc. 30 is GRANTED. That Petitioner's notice of state's non-compliance with rules of the court Doc. 34 is DENIED. Signed by Chief Judge Raner C Collins on 6/8/2018. (MCO)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

James Daniel Flores,
Petitioner,

10
11

ORDER

v.

12

No. CV-17-00120-TUC-RCC

Charles L Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is a Petitioner James Flores’s petition for writ of habeas

16

corpus (doc. 1) and a Report and Recommendation (“R&R”) prepared by Magistrate

17

Judge Jacqueline M. Rateau. Doc. 31. In the R&R, Magistrate Judge Rateau recommends

18

that this Court deny Petitioner’s motion. For the following reasons, this Court shall

19

accept and adopt the R&R and deny the petition.

20

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

21

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

22

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

23

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

24
25
26
27
28

U.S.C. § 636(b)(1).
Where the parties object to an R & R, “[a] judge of the [district] court shall make a
de novo determination of those portions of the [R & R] to which objection is made.” 28
U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no objection
is filed, the district court need not review the R & R de novo. Wang v. Masaitis, 416 F.3d

1

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

2

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

3

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

4

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

5

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

6

2001).

7

Here, as Magistrate Judge Rateau discusses in detail, Petitioner’s petition is

8

untimely and not entitled to any tolling. Petitioner’s objections do not change the fact that

9
10

his deadline to appeal was November 2, 2014 and that he filed this petition on November
13, 2017.

11

Accordingly,

12

IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus is

13
14

denied. Doc. 1.
IT IS FURTHER ORDERED that the Report and Recommendation prepared by

15
16
17

Magistrate Judge Rateau is accepted and adopted as the findings of fact and conclusions
of law of this Court. Doc. 31.
IT IS FURTHER ORDERED that the Clerk of Court is directed to close the

18
19
20
21
22
23
24

case.
IT IS FURTHER ORDERED that Respondents’ motion to strike is granted.
Doc. 30.
IT IS FURTHER ORDERED that Petitioner’s notice of state's non-compliance
with rules of the court is denied. Doc. 34.
Dated this 8th day of June, 2018.

25
26
27
28

-2-