Nelson v. Arizona, State of

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

9 Michael Nelson, No. CV-20-02358-PHX-MTL 10 Petitioner, ORDER v. NOT FOR PUBLICATION State of Arizona, et al., 13 Respondents.

15 Before the Court is the Report and Recommendation of the Magistrate Judge (“R & R”) (Doc. 25) recommending that the Court dismiss Petitioner’s Third Amended Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 15) as untimely. Neither party has filed objections to the R & R, and the time to do so has passed.* 19 In reviewing an R & R, this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts need not conduct “any review at all . . . of any issue that is not the subject of an objection”). No objections having been * Although Petitioner did not file objections to the R & R, he did file a Motion for Subpoena (Doc. 26), a Motion to Compel Discovery (Doc. 27), a Motion for Evidentiary Hearing (Doc. 28), and a Motion for Certificate of Appealability (Doc. 30). Because the Court will accept the Magistrate Judge’s R & R and dismiss Petitioner’s habeas petition, the Court denies as moot Petitioner’s pending motions. (Docs. 26–28, 30.) || received, the Court will accept and adopt the R & R. 2 Based on the foregoing, 3 IT IS ORDERED that the Report and Recommendation (Doc. 25) is accepted; accordingly, 5 1. The Third Amended Petition (Doc. 15) is dismissed with prejudice.

6 2. If Petitioner files an appeal, issuance of a certificate of appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Third || Amended Petition is justified by a plain procedural bar.

9 IT IS FURTHER ORDERED that Petitioner’s Motion for Subpoena (Doc. 26), || Motion to Compel Discovery (Doc. 27), Motion for Evidentiary Hearing (Doc. 28), and || Motion for Certificate of Appealability (Doc. 30) are denied as moot.

12 IT IS FINALLY ORDERED that the Clerk of the Court shall enter judgment || accordingly and close this case.

14 Dated this 2nd day of August, 2021.

Michal T. Shurde Michael T. Liburdi 18 United States District Judge _2-