Smith 211564 v. Thornell ( 2023 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christopher Lee Smith, No. CV-23-00997-PHX-DWL 10 Petitioner, ORDER 11 v. 12 Ryan Thornell, et al., 13 Respondents. 14 15 This is a habeas corpus action under 28 U.S.C. § 2254. (Doc. 1.) On December 4, 16 2023, Judge Bachus issued a Report and Recommendation (“R&R”) concluding that the 17 petition should be denied and dismissed with prejudice. (Doc. 11.) The R&R further 18 provided that “[t]he parties shall have fourteen days from the date of service of a copy of 19 this [R&] within which to file specific written objections with the Court.” (Id. at 14.) 20 One day after the R&R was issued, Petitioner filed a motion to “withdraw and 21 dismiss” this action. (Doc. 12.) In response, the Court issued an order clarifying that, 22 “because Respondents have already filed an answer, Petitioner is not entitled to automatic 23 dismissal under Rule 41(a)(1)(i). Accordingly, the Court will take no action on the 24 dismissal request, which arises under Rule 41(a)(2), at this time and will instead wait for 25 Respondents to respond to it. Petitioner is also reminded that the deadline for responding 26 to the R&R remains unchanged and, as noted in the R&R, ‘[f]ailure to timely file objections 27 to the [R&R] may result in the acceptance of the [R&R] by the District Court without 28 further review.’” (Doc. 13, citations omitted.) 1 Here, no such objections have been filed and the deadline for filing objections has 2 expired. Thus, the Court accepts the Magistrate Judge’s recommendation. See, e.g., 3 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear that Congress intended 4 to require district court review of a magistrate’s factual or legal conclusions, under a de 5 novo or any other standard, when neither party objects to those findings.”); Schmidt v. 6 Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[N]o review is required of a 7 magistrate judge’s report and recommendation unless objections are filed.”). See also 8 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge 9 must review the magistrate judge’s findings and recommendations de novo if objection is 10 made, but not otherwise.”). 11 This outcome also moots Petitioner’s motion to “withdraw and dismiss.” The Court 12 notes, at any rate, that it would not have granted such a dismissal for the reasons stated in 13 Respondents’ opposition (Doc. 14). 14 … 15 … 16 … 17 … 18 … 19 … 20 … 21 … 22 … 23 … 24 … 25 … 26 … 27 … 28 … 1 Accordingly, 2 IT IS ORDERED that the R&R’s recommended disposition (Doc. 11) is accepted, 3 || that the petition (Doc. 1) is denied and dismissed with prejudice, and that the Clerk of Court shall enter judgment accordingly. 5 IT IS FURTHER ORDERED that Petitioner’s motion to “withdraw and □□□□□□□□ 6|| (Doc. 12) is denied as moot. 7 IT IS FURTHER ORDERED that a certificate of appealability and leave to 8 || proceed in forma pauperis on appeal are denied because Petitioner has not made a 9|| substantial showing of the denial of a constitutional right and because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the 11 |} procedural ruling debatable. 12 Dated this 21st day of December, 2023. 13 14 Am ee 15 f CC —— Dominic W. Lanza 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 _3-