Melendez v. Fizer

Full title: Louis MELENDEZ, Petitioner, v. Warden Greg FIZER, Respondent

Court: United States District Court, D. Arizona

Date published: May 12, 2006

No. CV 05-891-PHX-SMM (VAM) (D. Ariz. May. 12, 2006)

Opinion

No. CV 05-891-PHX-SMM (VAM).

May 12, 2006

MEMORANDUM OF DECISION AND ORDER

STEPHEN McNAMEE, Chief District Judge

Pending before the Court is Petitioner Louis Melendez' Petition for Writ of Habeas Corpus. [Doc. No. 1] On December 30, 2005, Magistrate Judge Virginia A. Mathis filed a Report and Recommendation, advising this Court that Petitioner's Petition should be denied and dismissed for failure to prosecute. [Doc. No. 13] Petitioner filed Objections on January 25, 2006. [Doc. No. 17] On February 22, 2006, this Court declined to adopt Judge Mathis' Report and Recommendation because Petitioner had made affirmative efforts to pursue his case following the Report and Recommendation. [Doc. No. 18] This Court referred the Petition back to Judge Mathis for a Report and Recommendation on the merits of the Petition. Judge Mathis filed her subsequent Report and Recommendation on March 29, 2006 [Doc. No. 19], but Petitioner has not responded thereto.

STANDARD OF REVIEW

The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991). The Court must review the legal analysis in the Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1)(C). The Court must review the factual analysis in the Report and Recommendation de novo for those facts to which Objections are filed and for clear error for those facts to which no Objections are filed. See id.; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to file objections relieves the district court of conducting de novo review of the magistrate's factual findings).

DISCUSSION

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

CONCLUSION

For the reasons set forth above,

IT IS ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Virginia A. Mathis [Doc. No. 19].

IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus [Doc. No. 1] is denied. The Clerk of Court shall terminate this action accordingly.

IT IS FURTHER ORDERED that a copy of this Order be sent to Magistrate Judge Virginia A. Mathis.