Opinion
No. CV-16-02251-PHX-DJH
03-26-2019
Venancio Mondragon, Petitioner, v. Charles L Ryan, et al., Respondents.
NOT FOR PUBLICATION
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) and the Report and Recommendation ("R&R") (Doc. 14) issued by United States Magistrate Judge David K. Duncan. On January 29, 2014, Petitioner pled "no contest" to one count of attempted molestation, one count of sexual conduct with a minor (masturbatory), and one count of attempted sexual conduct with a minor. (Doc. 14 at 2). In his Petition, Petitioner raises two grounds for relief: first, he contends that he was sentenced "by the arbitrary and discriminatory application of a patently vague sentencing statute, specifically A.R.S. § 13-603(K)" in violation of his due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article II, Section 24 of the Arizona Constitution; and (2) that his due process rights under the same parts of the United States and Arizona Constitutions alleged in Ground 1 were denied during his sentencing because the sentencing court lacked subject matter jurisdiction when it gave him a sentence that did not conform to Arizona sentencing statutes. (Doc. 1 at 6-10). After consideration of the issues, Judge Duncan concluded that Petitioner's claims were not cognizable under federal habeas corpus laws because Petitioner is challenging a state law determination on an issue of state law. (Doc. 14 at 11-13). Accordingly, Judge Metcalf recommends the Petition be denied and dismissed with prejudice. (Id. at 13).
Judge Duncan 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. (Doc. 14 at 14) (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 Duncan'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 Metcalfs 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.
IT IS FURTHER ORDERED that Petitioner's request for an evidentiary hearing (Doc. 13 at 1) 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 FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.
Dated this 26th day of March, 2019.
/s/_________
Honorable Diane J. Humetewa
United States District Judge