Opinion
CV-22-01390-PHX-DJH
06-15-2023
Kevin Elliot Green, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Honorable Diane J. Humetewa United States District Judge
This matter is before the Court on Kevin Elliot Green's (“Petitioner”) pro se Petition for Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254 (Doc. 1), and the Report and Recommendation (“R&R”) (Doc. 15) issued by United States Magistrate Judge Deborah M. Fine on May 25, 2023. The R&R recommends dismissal of the Petition with prejudice, without an evidentiary hearing. (Doc. 15 at 73). It also recommends that a Certificate of Appealability be denied. (Id.)
In her R&R, Judge Fine advised the parties that they had fourteen days to file objections and that the failure to timely do so “may result in the acceptance of the Report and Recommendation by the district court without further review.” (Id. at 73-74) (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 Judge Fine's detailed and thorough 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. 14) is accepted and adopted as the Order of this Court.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) 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, because Petitioner has not “made a substantial showing of the denial of a constitutional right[,]” and because jurists of reason would not find the Court's rejection on constitutional grounds of Petitioner's Grounds One (a) and (b), Two (a), (c), and (e), Three (a) and (b), and Four (a) and (b) claims to be “debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.