Opinion
CV-22-01613-PHX-GMS
01-23-2024
Kevin M. Taubman, Petitioner, v. David Shinn, et al., Defendants.
ORDER AND DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA PAUPERIS STATUS
G. Murray Snow, Chief United States District Judge
Pending before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Eileen S. Willett (Doc. 19) regarding petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 2). The R&R recommends dismissal with prejudice of Ground One of the Petition and denial of Ground Two of the Petition. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 22 (citing 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6 and 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)).
Petitioner was two granted extensions amounting to approximately 70 additional days within which to file his Objections (Docs. 21, 23). Petitioner thereafter filed a third extension request and because Petitioner had not shown good cause, the Magistrate Judge denied his request but extended Petitioner's deadline to file his objection an additional 40 days. Petitioner then filed a Motion for Reconsideration of the Magistrate Judge's Order denying his request for extension and the motion was denied. No objections were filed.
Because the parties did not file objections, the Court need not review any of the Magistrate Judge's determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection.”). The absence of a timely objection also means that error may not be assigned on appeal to any defect in the rulings of the Magistrate Judge on any non-dispositive matters. Fed.R.Civ.P. 72(a) (“A party may serve and file objections to the order within 14 days after being served with a copy [of the magistrate's order]. A party may not assign as error a defect in the order not timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).
The Court will accept the R&R. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate”).
IT IS ORDERED that Report and Recommendation of the Magistrate Judge (Doc.19) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment dismissing with prejudice Ground One of the Petitioner (Doc. 1) and deny Ground Two of the Petition (Doc. 1). The Clerk shall terminate this action.
A request for a certificate of appealability and leave to proceed in forma pauperis on appeal will be denied because dismissal of the Amended Petition is justified by a plain procedural bar and that jurists of reason would not find it debatable whether the Court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).