James 161874 v. Arizona Department of Corrections

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason Jamar James, No. CV-18-04545-PHX-JJT (MTM) 10 Petitioner, ORDER v. Arizona Department of Corrections, 13 Respondent.

15 At issue is the Report and Recommendation (Doc. 40) (“R&R”) submitted in this matter by United States Magistrate Judge Michael T. Morrissey, recommending the Court dismiss with prejudice the Second Amended Petition for Habeas Corpus (Doc. 9) and deny Petitioner’s Emergency Motion for Release (Doc. 34). In the R&R, Judge Morrissey warned Petitioner he had 14 days from the date of its service to file any objections thereto, and failure to timely file any objections “may result in the acceptance of the Report and Recommendation,” per United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), and a waiver if his right to appellate review of any findings of fact the Court makes in this Order pursuant to the R&R, per Fed. R. Civ. P. 72. (Doc. 40 at 8-9.)

24 It has been five weeks since entry of the R&R and Petitioner filed no objections; he therefore has waived the above rights. Even if the Court reviewed the R&R on its merits, however, it would conclude that Judge Morrissey’s recommendations and findings are all legally sound and supported by the record.

28 . . . .

1 Judge Morrissey correctly concluded in his R&R that Grounds 1 and 2 are || procedurally defaulted without any showing of excuse or cause; and the Court here notes || that Petitioner did not argue actual innocence in his operative Petition. Petitioner did not 4|| raise either ground to the state’s highest court and those grounds are now procedurally || barred by state rule. Ariz. R. Crim. P. 32.16(a). The Court therefore will deny and dismiss || with prejudice the Second Amended Petition (Doc. 9).

7 IT IS ORDERED adopting the Report and Recommendation (Doc. 40) including its || underlying reasoning.

9 IT IS FURTHER ORDERED denying and dismissing with prejudice the Second || Amended Petition for Habeas Corpus (Doc. 9).

11 IT IS FURTHER Ordered denying a Certificate of Appealability, upon a finding || that dismissal is justified by a plain procedural bar and jurists of reason would not find the || procedural ruling debatable. There being no matter any longer before this court on which 14|| Petitioner could obtain relief, 15 IT IS FURTHER ORDERED denying Petitioner’s Emergency Motion for Release. (Doc. 34.)

17 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter.

18 Dated this 27th day of May, 2020. CN 20 wefeholee— Unifga State#District Judge -2-