Opinion
No. CV-17-01892-PHX-DLR
01-03-2019
Melinda Gabriella Valenzuela, Petitioner, v. Charles L Ryan, et al., Respondents.
ORDER
Before the Court is Petitioner Melinda Gabriella Valenzuela's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and United States Magistrate Judge Michelle H. Burns' Report and Recommendation ("R&R"). (Docs. 8, 65.)
On October 16, 2018, the Court issued an order adopting the Magistrate's R&R. (Doc. 68.) Subsequently, on November 7, 2018, Petitioner filed a motion for reconsideration, arguing that she was unable to file her objections because she was transferred. (Doc. 70 at 1-2.) The Court granted this request, vacated the October 16 Order, and gave Petitioner fourteen days to file specific written objections. (Doc. 71.) That deadline has long since passed, and Petitioner has not filed any objections.
The R&R recommends that the Petition be denied and dismissed with prejudice, finding that ground two fails on the merits, and grounds one and three are procedurally defaulted. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); 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."). The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court will accept the R&R and deny the Petition and dismiss. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").
IT IS ORDERED that Magistrate Judge Burns' R&R (Doc. 65) is ACCEPTED. Petitioner's Petition for Writ of Habeas Corpus (Doc. 8.) is DISMISSED. The Clerk of the Court shall terminate this case.
Having considered the issuance of a Certificate of Appealability from the order denying Petitioner's Petition for a Writ of Habeas Corpus, a Certificate of Appealability is denied because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the petition is justified by a plain procedural bar, and jurists of reason would not find the procedural ruling debatable.
Dated this 3rd day of January, 2019.
/s/_________
Douglas L. Rayes
United States District Judge