Gilardi v. Ryan et al

Filing 17

ORDER that the Report and Recommendation (Doc. 14 ) is accepted and adopted in full. It is further Ordered that the Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. The Clerk of Court is directed to enter judgment accordingly and close this case. It is further Ordered that the Court declines to issue a certificate of appealability, because reasonable jurists would not find the Court's ruling debatable. Signed by Judge Rosemary Marquez on 12/17/2018. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Andrew Paul Gilardi,
Petitioner,

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ORDER

v.

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No. CV-17-00609-TUC-RM

Charles Ryan, et al.,

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Respondents.

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Pending before the Court is Magistrate Judge Bernardo P. Velasco’s Report and

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Recommendation (Doc. 14) recommending that this Court deny Petitioner’s Petition for

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Writ of Habeas Corpus brought under 28 U.S.C. § 2254. Petitioner was granted one

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extension, until October 12, 2018, to file objections to the Report and Recommendation

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(Doc. 16). Petitioner has not filed any objections, and the time for doing so has long-since

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expired.

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A district judge must “make a de novo determination of those portions” of a

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magistrate judge’s “report or specified proposed findings or recommendations to which

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objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule 72(b)

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of the Federal Rules of Civil Procedure state that, “[w]hen 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 to

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accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) advisory

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committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 F.3d 734,

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739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district court

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judge reviews those unobjected portions for clear error.”); Prior v. Ryan, CV 10-225-TUC-

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RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for clear error

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unobjected-to portions of Report and Recommendation).

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The Court has reviewed Judge Velasco’s Report and Recommendation, the parties’

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briefs, and the record. The Court finds no error in Judge Velasco’s Report and

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Recommendation. Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 14) is accepted and
adopted in full.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc.

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1) is denied. The Clerk of Court is directed to enter judgment accordingly and close this

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case.

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IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, the Court declines to issue a certificate of appealability, because

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reasonable jurists would not find the Court’s ruling debatable. See Slack v. McDaniel, 529

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U.S. 473, 478, 484 (2000).

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Dated this 17th day of December, 2018.

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