Horn v. Schriro

Full title: Douglas Lee Horn, Plaintiff, v. Dora Schriro, et al., Defendants

Court: United States District Court, D. Arizona

Date published: Jul 16, 2006

No. CV-04-2014-PHX-SMM (LOA) (D. Ariz. Jul. 16, 2006)

Opinion

No. CV-04-2014-PHX-SMM (LOA).

July 16, 2006

ORDER

STEPHEN McNAMEE, Chief District Judge

On June 8, 2006, Magistrate Judge Lawrence O. Anderson filed a Report and Recommendation, advising this Court that Plaintiff's Motion to Vacate Conviction and Sentence pursuant to 28 U.S.C. § 2255 should be denied without prejudice, or in the alternative, stricken because there have been no criminal proceedings in this Court against Plaintiff, nor has Plaintiff been sentenced by this Court. (Dkt. 151.) To date, Plaintiff has not filed objections to Judge Anderson's Report and Recommendation.

STANDARD OF REVIEW

When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

By failing to object to a Report and Recommendation, a party waives his right to challenge the Magistrate's factual findings, but not necessarily the Magistrate's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).

DISCUSSION

Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Plaintiff thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation.

CONCLUSION

For the reasons set forth,

IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Lawrence O. Anderson. (Dkt. 151.)

IT IS FURTHER ORDERED that Plaintiff's Motion to Vacate Conviction and Sentence pursuant to 28 U.S.C. § 2255 (dkt. 108) shall be STRICKEN from the docket.

IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge Lawrence O. Anderson.