Opinion
No. CV-18-00924-PHX-DJH
04-03-2019
Stef Boris Dawood, Petitioner, v. Charles L Ryan, et al., Respondents.
NOT FOR PUBLICATION
ORDER
Before this Court is Petitioner Stef Boris Dawood's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 3354 ("Petition") (Doc. 1) and the Report and Recommendation ("R&R") issued by Magistrate Judge John Z. Boyle on December 18, 2018 (Doc. 15). Petitioner raised four grounds for relief in his Petition. (Doc. 1). Judge Boyle found that each of the four grounds were unexhausted and procedurally defaulted because Petitioner failed to raise them before the state courts. (Doc. 15 at 1, 13). He further found that Petitioner could not establish cause and prejudice to excuse the defaults. (Id.) Judge Boyle accordingly recommends dismissing the Petition with prejudice. (Id.)
Judge Boyle 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." (Doc. 15 at 13) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). On February 13, 2019, Petitioner filed a "Motion for Status Request" in which he stated that he had "not yet received any order" on his Petition. (Doc. 16). On February 22, 2019, the Court granted Petitioner's request, informed Petitioner that Judge Boyle had issued a R&R denying his Petition on December 18, 2018, and ordered the Clerk of Court to re-mail a copy of the R&R to Petitioner. (Doc. 17). A copy was mailed to Petitioner the same day. Notwithstanding, Petitioner has not filed an objection to Judge Boyle's R&R 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.").
Although not required, the Court has reviewed Judge Boyle'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) ("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 Boyle's R&R (Doc. 15) 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 and 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 FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.
Dated this 3rd day of April, 2019.
/s/_________
Honorable Diane J. Humetewa
United States District Judge