Opinion
No. CV-18-00685-PHX-DJH
04-09-2019
Jerry Dean Woods, Petitioner, v. Charles L Ryan, et al., Respondents.
ORDER
This matter is before the Court on Petitioner's First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (the "Petition"), Respondents' Notice of Prior Habeas Petitions and Request for Clarification (Doc. 13), and the Report and Recommendation ("R&R") issued by United States Magistrate Judge James F. Metcalf on February 28, 2019 (Doc. 15). In his R&R, Judge Metcalf recommends dismissing the First Amended Petition without prejudice to Petitioner seeking authorization from the Ninth Circuit Court of Appeals to file a successive habeas petition and that a Certificate of Appealability be denied. (Doc. 15 at 9).
Judge Metcalf advised the parties that they had fourteen days to file objections and that the failure to file timely objections would "be considered a waiver of a party's right to de novo consideration of the issues, [] . . . and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge..." (Id. at 9-10 (citing States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) and Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007)). The parties have not filed objections 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 dismiss the Petition. 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 Metcalf's R&R (Doc. 15) is accepted and adopted as the order of this Court.
IT IS FURTHER ORDERED that the First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED without prejudice to Petitioner seeking authorization from the Ninth Circuit Court of Appeals to file a successive habeas petition.
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.
IT IS FURTHER ORDERED that Respondents' Request for Clarification (Doc. 13) is DENIED as moot. ... ... ...
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.
Dated this 9th day of April, 2019.
/s/_________
Honorable Diane J. Humetewa
United States District Judge