Walford v. Ryan

Full title: Gary Walford, Petitioner, v. Charles L. Ryan, et al., Respondents

Court: United States District Court, D. Arizona

Date published: Jun 13, 2011

No. CV-11-00395-PHX-NVW (D. Ariz. Jun. 13, 2011)

Opinion

No. CV-11-00395-PHX-NVW.

June 13, 2011

ORDER

NEIL WAKE, District Judge

Pending before the court is the Report and Recommendation ("R R") of Magistrate Judge Duncan (Doc. 13) regarding Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 4). The R R recommends that the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R R. (Doc. 13 at 3 (citing 28 U.S.C. § 636(b)(1)). No objections were filed.

Because the parties did not file objections, the Court need not review any of the Magistrate Judge's determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 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."). The absence of a timely objection also means that error may not be assigned on appeal to any defect in the rulings of the Magistrate Judge on any non-dispositive matters. Fed.R.Civ.P. 72(a) ("A party may serve and file objections to the order within 14 days after being served with a copy [of the magistrate's order]. A party may not assign as error a defect in the order not timely objected to."); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).

Notwithstanding the absence of an objection, the Court has reviewed the R R and finds that it is well taken. The Court will accept the R R and dismiss the Petition. 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").

IT IS THEREFORE ORDERED that the Report and Recommendation of Magistrate Judge Duncan (Doc. 13) is accepted.

IT IS FURTHER ORDERED that Respondents' Motion to Dismiss For Failure to Satisfy Exhaustion Requirement (Doc. 11) is granted.

IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. 4) is dismissed without prejudice.

IT IS FURTHER ORDERED that a Certificate of Appealability is denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

DATED this 10^th day of June, 2011.