Jean v. Shinn ( 2020 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Emilio Jean, ) No. CV-19-08125-PCT-SPL ) 9 ) 10 Petitioner, ) ORDER vs. ) ) 11 ) David Shinn, et al., ) 12 ) 13 Respondents. ) ) 14 ) 15 Petitioner Emilio Jean has filed a Petition for Writ of Habeas Corpus pursuant to 28 16 U.S.C. § 2254 (Doc. 1). The Honorable Michael T. Morrissey, United States Magistrate 17 Judge, issued a Report and Recommendation (“R&R”) (Doc. 19), recommending that the 18 Court deny the Petition. Judge Morrissey advised the parties that they had fourteen (14) 19 days to file objections to the R&R and that failure to file timely objections could be 20 considered a waiver of the right to obtain review of the R&R. (Doc. 19 at 9-10) (citing 28 21 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 22 1121 (9th Cir. 2003)).1 23 1 Petitioner filed a Notice of Interlocutory Appeal from the R&R on October 20, 24 2020 (Doc. 20). Because the R&R is not immediately appealable to the Ninth Circuit Court of Appeals, the notice does not deprive this Court of jurisdiction to rule on the R&R. See 25 Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) (“When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer 26 jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply.”); See also Doc. 19 at 9 (“This 27 recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate 28 Procedure, should not be filed until entry of the district court’s judgment.”). 1 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 vy. Arn, 474 U.S. 140, 149 3) (1985) [Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is 4) not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must 5| determine de novo any part of the magistrate judge’s disposition that has been properly 6 | 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 8 | that the district court “may accept, reject, or modify, in whole or in part, the findings or 9 | recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (‘The district judge 10 | may accept, reject, or modify the recommended disposition; receive further evidence; or 11 | return the matter to the magistrate judge with instructions.”). Accordingly, 12 IT IS ORDERED: 13 1. That Magistrate Judge Morrissey’s Report and Recommendation (Doc. 19) 14| is accepted and adopted by the Court; 15 2. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 16 | (Doc. 1) is denied and dismissed with prejudice; 17 3. That a certificate of appealability and leave to proceed in forma pauperis on 18 | appeal are denied; and 19 4. That the Clerk of Court shall terminate this action. 20 Dated this 28th day of October, 2020. 21 22 Ake 23 United States District kadge 24 25 26 27 28