Opinion
No. CV-18-03362-PHX-DJH
01-07-2020
Guadalupe Garcia Cortez, Petitioner, v. Attorney General of the State of Arizona, 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 ("Petition") (Doc. 1) and the Report and Recommendation ("R&R") (Doc. 12) issued by United States Magistrate Judge Camille D. Bibles.
After consideration of the issues raised in the Petition, Judge Bibles concluded in her R&R that the Petition was untimely. She further found that Petitioner had procedurally defaulted his federal habeas claim in the state courts, and had not established cause for or prejudice arising from his procedural default, or that he had asserted his factual innocence of the crime for which he was convicted. (Id. at 13). Accordingly, Judge Bibles recommends the Petition be denied. (Id.).
Judge Bibles 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." (Id. at 13-14) (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 Bibles's 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 Bibles's Report and Recommendation (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 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 Petitioner is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, nor has he made a substantial showing of the denial of a constitutional right.
IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action and enter judgment accordingly.
Dated this 7th day of January, 2020.
/s/_________
Honorable Diane J. Humetewa
United States District Judge