Opinion
No. CV-17-00891-PHX-DJH
11-03-2017
Robert James Neese, Petitioner, v. Charles L. 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) and the Report and Recommendation ("R&R") (Doc. 12) issued by United States Magistrate Judge James F. Metcalf. Following a jury trial in April 2013, Petitioner was convicted of multiple counts of burglary and theft and sentenced to 22.75 years in prison. (Doc. 12 at 2-3). Petitioner raised two grounds for relief in the Petition: first, that the trial court violated his right to due process under the Fifth Amendment because the statute of limitations had expired on all but one of the counts in the indictment; and second, that the trial court violated his rights under the Sixth and Fourteenth Amendments by failing to grant an evidentiary hearing to decide the statute of limitations issue. (Doc. 12 at 4-5). After consideration of the issues, Judge Metcalf concluded that Petitioner's claims are procedurally defaulted and Petitioner has failed to show cause or prejudice or actual innocence to avoid the effect of his procedural default. (Doc. 12 at 23). Accordingly, Judge Metcalf recommends the Petition be dismissed with prejudice. (Id. at 24).
Judge Metcalf advised the parties that they had fourteen days to file objections and that the failure to file timely objections "will be considered a waiver of [Petitioner's] right to de novo consideration of the issues." (Doc. 12 at 25) (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) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "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 Metcalf'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)(C) ("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 Metcalf's R&R (Doc. 12) 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 dismissed with prejudice.
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 3rd day of November, 2017.
/s/_________
Honorable Diane J. Humetewa
United States District Judge