Opinion
CV-20-02028-PHX-JJT (MTM)
05-16-2022
Jericho R. Spriggs, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Honorable John J. Tuchi United States District Judge
At issue is the Report and Recommendation (Doc. 13, “R&R”) submitted in this matter by United States Magistrate Judge Michael T. Morrissey recommending that the Court deny Petitioner Jericho R. Spriggs's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 1). In the R&R, Judge Morrissey warned the parties that they “shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court.” (Doc. 13 at 17). Judge Morrissey further warned the parties that “failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance [of the R&R] by the District Court without further review, ” and “failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.” (Doc. 13 at 17-18.)
Judge Morrissey's R&R was entered October 18, 2021. Because Petitioner is not registered as a participant on the Court's ECF system for electronic service, service of the 1 R&R upon him was affected by mail that same day, pursuant to Rule 5(b(2)(C), Fed. R. Civ. P., and Petitioner's 14-day deadline was extended by three days to account for mailing as provided in Rule 6(d), Fed.R.Civ.P. Thus, Petitioner had a total of 17 days, or until November 2, 2021, to file any objections to the R&R. Then, upon Petitioner's Motion (Doc. 15), the Court extended that deadline approximately 90 additional days to February 11, 2022. (Doc. 17.) Even after the extension, Petitioner filed no objections, either by that extended February 11 deadline or in the three months since. Petitioner therefore has waived his right to de novo consideration of the issues before the Court and its findings and conclusions in this Order.
The Court nonetheless evaluated the R&R on its merits, and upon doing so, concludes that Judge Morrissey's reasoning and recommendations are all sound and thoroughly discussed. It therefore will adopt the R&R, including its analysis, in whole. Ground Seven of the Petition is unexhausted before the state courts and now procedurally defaulted; it therefore must be dismissed with prejudice. Grounds One, Two, Four and Five fail on their merits for the reasons exhaustively set forth in the R&R. Ground Three is not cognizable in federal law. Ground Six is neither cognizable in federal law nor supported on the merits. All are denied.
IT IS ORDERED adopting in whole Judge Morrissey's R&R (Doc. 13) and denying and dismissing with prejudice the Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 1).
IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis on appeal. Petitioner has not made a substantial showing of the denial of a federal constitutional right with regard to Grounds One through Six, and the Court concludes jurists of reason could not disagree thereabout. As to Ground Seven, the Court finds jurists of reason could not disagree that it is prohibited by a plain procedural bar. .... .... 2
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and terminate this matter. 3