Opinion
No. CV 05-3573-PHX-JAT.
December 1, 2006
ORDER
Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition") (Doc. #1). The Magistrate Judge issued a Report and Recommendation ("R R") (Doc. #22) recommending that the Petition be denied. In "response" to the R R, Petitioner sent the Magistrate Judge a Letter (which was placed into the record at Doc. #23). In the Letter, Petitioner indicates that he does not wish to appeal to the Ninth Circuit court of appeals and that he intends to return to state court to pursue his remedies there.
The Court has not construed this letter to be objections to the R R. Because neither party has filed objections to the R R, the Court hereby accepts the R R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection" (emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc) ("statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise" (emphasis in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003).
However, referring back to the Letter, nothing in the R R indicates that Petitioner has available remedies in state court. Thus, if Petitioner failed to file objections to the R R based on some misunderstanding of the R R, Petitioner may, within 30 days of this Order, move to re-open this case andcontemporaneously file his objections to the R R. If that occurs, the Court will consider the objections as if they had been timely filed.
The Court is not undertaking to rule on whether, or advise Petitioner whether, he has available state court remedies. The Court is merely summarizing the R R.
Based on the foregoing,
IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. #22) is ACCEPTED;
IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Doc. #1) is DENIED; and
IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE; the Clerk of the Court shall enter judgment accordingly.