Porter 341649 v. Thornell ( 2024 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rudolph John Porter, Jr., No. CV-23-00632-PHX-DJH 10 Petitioner, ORDER 11 v. 12 Ryan Thornell, et al., 13 Respondents. 14 15 On February 16, 2024, Magistrate Judge Deborah M. Fine issued a Report and 16 Recommendation (“R&R”) recommending that Petitioner Rudolph John Porter, Jr.’s 17 Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State 18 Custody (Non-Death Penalty) (“Petition”) (Doc. 1) be denied, and the matter dismissed 19 with prejudice. (See Doc. 16 at 26–27). The R&R also recommends that a certificate of 20 appealability be denied because dismissal is justified by a plain procedural bar and 21 reasonable jurists would not find the ruling debatable. (Id. at 26). Judge Fine advised the 22 parties that they had fourteen days to file objections and that the failure to timely do so 23 “may result in the acceptance of the Report and Recommendation by the district court 24 without further review.” (Id. at 27) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 25 1121 (9th Cir. 2003) (en banc)). Over fourteen days have passed and neither party has 26 filed an objection. 27 Absent any objections, the Court is not required to review the findings and 28 recommendations in the R&R. See Thomas, 474 U.S. at 149 (noting that the relevant || provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on its face 2|| require any review at all... of any issue that is not the subject of an objection.”); Reyna- 3|| Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must 4|| determine de novo any part of the magistrate judge’s disposition that has been properly || objected to.”). 6 Nonetheless, the Court has reviewed Judge Fine’s comprehensive and well- 7\| reasoned R&R and agrees with its findings and recommendations. The Court will, 8 || therefore, accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge 9|| of the court may accept, reject, or modify, in whole or in part, the findings or 10 || recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 11 Accordingly, 12 IT IS ORDERED that Magistrate Judge Fine’s Report and Recommendation 13 || (Doc. 16) is ACCEPTED and ADOPTED as the Order of this Court. 14 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 15 || pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 17 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing |} Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because dismissal is justified by a plain procedural bar and 20 || reasonable jurists would not find the procedural ruling debatable. 21 IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this 22 || action and enter judgment accordingly. 23 Dated this 24th day of April, 2024. 24 ip Gury □□ 25 norable' Diang/J. Humetewa 26 United States District Judge 27 28 _2-