Opinion
CV-22-01193-PHX-DJH (MTM)
06-30-2023
Kirk Douglas Ball, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Honorable Diane J. Humetewa, United States District Judge
This matter is before the Court on Kirk Douglas Ball's (“Petitioner”) pro se Second Amended Petition for Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 9), and the Report and Recommendation (“R&R”) (Doc. 23) issued by United States Magistrate Judge Michael T. Morrissey on June 14, 2023. The R&R finds the Second Amended Petition untimely without excuse and recommends dismissal of the Petition with prejudice, without the need for an evidentiary hearing. (Doc. 23 at 8). It also recommends that a Certificate of Appealability be denied. (Id.)
In his R&R, Judge Morrissey advised the parties that they had fourteen days to file objections and that the failure to timely do so “may result in the District Court's acceptance of the Report and Recommendation without further review.” (Id.) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). Petitioner has not filed an objection and the time to do so has expired. Respondents have also not filed an objection. Absent any objections, the Court is not required to review the findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting that the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on its face require any review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”).
Nonetheless, the Court has reviewed the R&R and agrees with its findings and recommendations. The Court will, therefore, accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).
Accordingly, IT IS ORDERED that the R&R (Doc. 23) is accepted and adopted as the Order of this Court.
IT IS FURTHER ORDERED that the Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 9) is denied and dismissed with prejudice. Petitioner's request for an evidentiary hearing is denied.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.