Opinion
No. CV-18-02680-PHX-RCC
12-30-2019
Telly Onturio Beasley, Petitioner, v. Charles L Ryan, et al., Respondents.
ORDER
On November 25, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation ("R&R") in which he recommended the Court dismiss Petitioner Telly Onturio Beasley's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Petition"). (Doc. 12.) The R&R notified the parties they had fourteen (14) days from the date of the R&R to file any objections. No objections have been filed. However, on December 23, 2019, Petitioner filed a Notice of Appeal from a Judgment or Order of a United States District Court. (Doc. 13.)
There is no final decision to appeal in this matter. See 28 U.S.C. § 1291 (appellate court's jurisdiction is over final district court decisions). Therefore, an interlocutory appeal is not appropriate. See 28 U.S.C. § 1292. "An attempt to appeal a nonfinal decision of a district court remains just that, an attempt; it is a nullity and does not divest the trial court of its jurisdiction." Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 567 (10th Cir. 1979). Therefore, an "application for an appeal . . . shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order." 28 U.S.C. § 1292(b).
Petitioner's appeal does not relieve him from complying with the Magistrate Judge's order requiring Petitioner file objections within two weeks. (Doc. 12.) No objections were filed in this case and Petitioner's premature appeal to the Ninth Circuit does not prevent the Court from making rendering judgment in this matter.
If neither party objects to a magistrate judge's report and recommendation, the District Court is not required to review the magistrate judge's decision under any specified standard of review. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the statute for review of a magistrate judge's recommendation "does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard." Id. at 154.
The Court has independently reviewed the Petition (Doc. 1), Respondent's Answer (Doc. 11), and Judge Ferraro's R&R (Doc. 12). The Court finds the R&R well-reasoned and agrees with Judge Ferraro's conclusions.
IT IS ORDERED the R&R is ADOPTED (Doc. 12) and Telly Onturio Beasley's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (Non-Death Penalty) is DENIED (Doc. 1). The Clerk of Court shall docket accordingly and close the case file in this matter.
Dated this 30th day of December, 2019.
/s/_________
Honorable Raner C. Collins
Senior United States District Judge