Opinion
No. CV-18-01016-PHX-DJH
07-08-2019
John Patrick Kelly, Petitioner, v. Charles Ryan, et al., Respondents.
ORDER
This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1); the Report and Recommendation ("R&R") (Doc. 17) issued by United States Magistrate Judge Bridget S. Bade; and Petitioner's Motion for Case Status (Doc. 19).
Petitioner was tried and found guilty of one count of fraudulent schemes and artifices, one count of theft, four counts of criminal impersonation, one count of attempting to traffic stolen property, one count of trafficking in stolen property, and one count of attempted theft. (Doc. 17 at 1, 3). On November 22, 2010, the state court imposed concurrent, enhanced, aggravated, and presumptive sentences, the longest of which was 22 years of imprisonment. (Id. at 3). In his Petition, Petitioner raises three grounds for relief: first, he contends that his trial counsel provided ineffective assistance of counsel by failing to communicate plea offers; second, that the trial violated his right to a speedy trial; and third, that the settlement conference judge engaged in judicial misconduct by offering Petitioner a favorable plea in exchange for money or property. (Id. at 5). After consideration of the issues, Judge Bade concluded that some of Petitioner's claims were procedurally barred from federal habeas corpus review without an excuse, and that his remaining claim did not entitle him to habeas corpus relief. (Id. at 26). Accordingly, Judge Bade recommends the Petition be denied and dismissed with prejudice. (Id. at 13).
Judge Bade 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 27) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). 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 Bade's comprehensive and well-reasoned 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 Magistrate Judge Bade's Report and Recommendation (Doc. 17) 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.
IT IS FURTHER ORDERED that Petitioner's Motion for Case Status (Doc. 19) is DENIED as moot.
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 Petitioner is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable.
IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly.
Dated this 8th day of July, 2019.
/s/_________
Honorable Diane J. Humetewa
United States District Judge