Luke v. Shinn

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Robert Lane Luke, No. CV-22-01181-PHX-GMS (MTM) Petitioner, 10 ORDER v. and David Shinn, et al., 13 Respondents. DENIAL OF CERTIFICATE OF APPEALABILITY AND IN FORMA 14 PAUPERIS STATUS 16 Pending before the court is the Report and Recommendation (“R&R”) of Magistrate Judge Morrissey (Doc. 15) regarding petitioner’s Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 4). The R&R recommends that the Petition be denied and dismissed with prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 6 (citing 28 U.S.C. § 21 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). No objections were filed.

23 Because the parties did not file objections, the court need not review any of the Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 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.”). The absence of a timely objection also means that error may not be assigned on appeal to any defect in the rulings of the Magistrate Judge on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A || party may serve and file objections to the order within 14 days after being served with a copy [of the magistrate’s order]. A party may not assign as error a defect in the order not timely objected to.”); Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); || Phillips v. GMC, 289 F.3d 1117, 1120-21 (9th Cir. 2002).

6 The court will accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) || (stating that the district court “may accept, reject, or modify, in whole or in part, the || findings or recommendations made by the magistrate’).

9 IT IS ORDERED that Report and Recommendation of the Magistrate Judge || (Doc.15) is accepted.

11 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying || and dismissing petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to || U.S.C. § 2254 (Doc. 4) with prejudice. The Clerk shall terminate this action.

14 A request for a certificate of appealability will be denied because Petitioner has not || demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller- El v. Cockrell, 537 U.S. 322, 327 (2003).

18 Dated this 6th day of September, 2023.

Whirs ) 50 A Whacrsay Sooo) Chief United states District Judge -2-