Smith v. Ryan

2 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Steven Alfred Smith, ) No. CV-18-03349-PHX-SPL ) ) 10 Petitioner, ) ORDER vs. ) ) ) Charles L. Ryan, et al., ) ) 13 Respondents. ) ) 14 ) 15 Petitioner Steven Alfred Smith has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The Honorable Michelle H. Burns, United States Magistrate Judge, issued a Report and Recommendation (“R&R”), recommending that the Court deny the Petition. (Doc. 12). Judge Burns advised the parties that they had fourteen (14) days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. (Doc. 12) (citing 28 U.S.C. § 21 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).

23 The parties did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; 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.”); 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.”). The Court has nonetheless reviewed the R&R and finds that it is well-taken.

The Court will adopt the R&R and deny the Petition. See 28 U.S.C. § 636(b)(1) (stating 2| that the district court “may accept, reject, or modify, in whole or in part, the findings or | recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge 4) may accept, reject, or modify the recommended disposition; receive further evidence; or 5| return the matter to the magistrate judge with instructions.”).

6 Petitioner has also filed a Motion for Evidentiary Hearing to “establish [his] actual | innocence that the state attorney convicted and sentence[d] the wrong person into prison.”

8 | (Doc. 13). Again, and as previously addressed by Judge Burns, Petitioner has made only abare assertion of actual innocence and has failed to identify any new evidence to support 10| claim. Thus, the motion with be denied. Accordingly, 11 IT IS ORDERED: 12 1. That Magistrate Judge Michelle H. Burns’ Report and Recommendation | (Doc. 12) is accepted and adopted by the Court; 14 2. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 | (Doc. 1) is denied and dismissed with prejudice; 16 3. That Petitioner’s Motion for Evidentiary Hearing (Doc. 13) is denied; 17 4. That a certificate of appealability and leave to proceed in forma pauperis on | appeal are denied; and 19 5. That the Clerk of Court shall terminate this action.

20 Dated this 23rd day of October, 2019.

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