Lewis v. Ryan

Full title: James Francisco Lewis, Petitioner, v. Charles Ryan, et al., Respondents.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Apr 20, 2018

No. CV-17-01982-PHX-DJH (D. Ariz. Apr. 20, 2018)

Opinion

No. CV-17-01982-PHX-DJH

04-20-2018

James Francisco Lewis, Petitioner, v. Charles Ryan, et al., Respondents.

Honorable Diane J. Humetewa United States District Judge

ORDER

Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) in which the Petitioner raised two grounds for relief. Following a thorough and comprehensive analysis, Magistrate Judge John Boyle recommended denial of and dismissal with prejudice of the Petition, finding that (1) Petitioner's ground one claims had been waived as a result of his guilty pleas and were no cognizable on habeas review; and (2) Petitioner's ground two claim of ineffective assistance of counsel were unexhausted and procedurally defaulted. (Doc. 19).

Judge Boyle advised the parties that they had fourteen days to file objections and that the failure to file timely objections "may result in the acceptance of the Report and Recommendation by the district court without further review." (Id. at 16) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003)). No objections have been filed and the time to do so has expired. 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) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "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 the R&R and agrees with its findings and recommendations. The Court will, therefore, accept the R&R and adopt Judge Boyle's recommendations. See 28 U.S.C. § 636(b)(1)(C) ("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. 19) is accepted and adopted as the order of this Court.

IT IS FURTHER ORDERED that the Petition for Writ ofHabeas 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, and because Petitioner has not made a substantial showing of the denial of a constitutional right.

IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.

Dated this 20th day of April, 2018.

/s/_________

Honorable Diane J. Humetewa

United States District Judge