Opinion
No. CV-19-00963-PHX-SPL
11-02-2020
Michael Eugene Brooks, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Petitioner Michael Eugene Brooks has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Honorable James F. Metcalf, United States Magistrate Judge, issued a Report and Recommendation ("R&R") (Doc. 26), recommending that the Court: (1) grant Petitioner's motion to amend to delete Grounds 9, 10, and 11; (2) dismiss Grounds 7 and 8 with prejudice for failure to state a cognizable claim; (3) dismiss Grounds 3A, 3B, 3C, 3E, 4, 5, and 6 with prejudice as procedurally defaulted, (4) deny Grounds 1, 2, and 3D and the balance of the Petition; and (5) deny Petitioner's Motion to Stay and Abey. Judge Metcalf advised the parties that they had fourteen (14) 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. (Doc. 26 at 45) (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).
The parties 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 thus adopt the R&R. 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."). Accordingly,
IT IS ORDERED that Magistrate Judge Metcalf's Report and Recommendation (Doc. 26) is accepted and adopted by the Court.
IT IS FURTHER ORDERED that with regard to the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1):
a. Petitioner's motion to amend the Petition to delete Grounds 9, 10, and 11 is granted and the Petition is deemed amended to delete Grounds 9, 10 and 11;
b. Grounds 7 and 8 are dismissed with prejudice for failure to state a cognizable claim;
c. Grounds 3A, 3B, 3C, 3E, 4, 5, and 6 are dismissed with prejudice as procedurally defaulted; and
d. Grounds 1, 2, and 3D, and the balance of the Petition are denied.
IT IS FURTHER ORDERED that Petitioner's Motion to Stay and Abey (Doc. 23) is denied. /// /// /// /// ///
IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed in forma pauperis on appeal are denied.
IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action.
Dated this 2nd day of November, 2020.
/s/_________
Honorable Steven P. Logan
United States District Judge