Opinion
CV-21-00043-TUC-DCB
03-17-2022
Jerry Lee Lewis, Petitioner, v. C. Howard, Respondent.
ORDER
Honorable David C. Bury, United States District Judge.
This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to Rules of Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil) 72.1(a). She issued a Report and Recommendation (R&R) on February 7, 2022. (Doc. 29: R&R). She recommends denying the habeas petition because the Petitioner is not entitled relief, pursuant to 28 U.S.C. § 2241. He seeks to have reinstatement of good time credits, but he is serving a life sentence and, therefore, not entitled to good time credits. There is no basis in law for this Court to expunge the incident from his record. The Court adopts the R&R, including the recommendation to deny the Petition.
STANDARD OF REVIEW
The duties of the district court, when reviewing a R&R, are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district 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), 28 U.S.C. § 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those 1 portions of the [R&R] to which objection is made.'” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no objections are filed, the district court does not need to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc).
The parties were sent copies of the R&R and instructed they had 14 days to file written objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). To date, no objections have been filed.
REPORT AND RECOMMENDATION
There are no objections and, therefore, eview has been waived, the Court nevertheless reviews at a minimum, de novo, the Magistrate Judge's conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily waive question of law but is a factor in considering the propriety of finding waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear error in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider matters delegated to magistrate judge when there is clear error or recommendation is contrary to law). The Court accepts and adopts the R&R as the opinion of the Court, including findings of fact and law, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated in the R&R, the Court denies the Petition because the Petitioner is not entitled to relief as a matter of law.
Accordingly, IT IS ORDERED that the Report and Recommendation (Doc. 29) is adopted as the opinion of the Court.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. 2
IT IS FURTHER ORDERED that Plaintiff proceeding here in forma pauperis under 28 U.S.C. § 2241, in the event the Plaintiff files an appeal, the Court finds the appeal is not taken in good faith because an appeal would be frivolous as there is no substantial argument to be made contrary to this Court's determination recorded here. 28 U.S.C. 1915(a)(3) and FRAP 24(a); Cruz v. Hauck, 404 U.S. 59, 62 (1971). 3