Beasley v. Shinn ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Telly Onturio Beasley, No. CV-18-03132-PHX-RCC (DTF) 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 On November 8, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and 16 Recommendation (“R&R”) in which he recommended the Court dismiss Petitioner Telly 17 Onturio Beasley’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 18 (“Petition”). (Doc. 13.) The R&R notified the parties they had fourteen (14) days from 19 the date of the R&R to file any objections. No objections have been filed. However, on 20 December 9, 2019, Petitioner filed a Notice of Appeal from a Judgment or Order of a 21 United States District Court. (Doc. 14.) 22 There is no final decision to appeal in this matter. See 28 U.S.C. § 1291 (appellate 23 court’s jurisdiction is over final district court decisions). Therefore, an interlocutory 24 appeal is also not appropriate. See 28 U.S.C. § 1292. “An attempt to appeal a nonfinal 25 decision of a district court remains just that, an attempt; it is a nullity and does not divest 26 the trial court of its jurisdiction.” Century Laminating, Ltd. v. Montgomery, 595 F.2d 563, 27 567 (10th Cir. 1979). Therefore, an “application for an appeal . . . shall not stay 28 proceedings in the district court unless the district judge or the Court of Appeals or a I || judge thereof shall so order.” 28 U.S.C. § 1292(b). 2 Petitioner’s appeal does not relieve him from complying with the Magistrate 3|| Judge’s order requiring Petitioner file objections within two weeks. (Doc. 13 at 4.) No 4|| objections were filed in this case and Petitioner’s premature appeal to the Ninth Circuit 5 || does not prevent the Court from making rendering judgment in this matter. 6 If neither party objects to a magistrate judge’s report and recommendation, the 7|| District Court is not required to review the magistrate judge’s decision under any 8 || specified standard of review. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the 9|| statute for review of a magistrate judge’s recommendation “does not preclude further || review by the district judge, sua sponte or at the request of a party, under a de novo or 11 || any other standard.” Jd. at 154. 12 The Court has independently reviewed the Petition (Doc. 1), Respondent’s Answer (Doc. 12), and Judge Ferraro’s R&R (Doc. 13). The Court finds the R&R well-reasoned || and agrees with Judge Ferraro’s conclusion that this Petition is moot. 15 IT IS ORDERED the R&R is ADOPTED (Doc. 12) and Telly Onturio Beasley’s 16 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED (Doc. 1). 17 The Clerk of Court shall docket accordingly and close the case file in this matter. 18 Dated this 23rd day of December, 2019. 19 20 4A) 73 senior United States District Judge 24 25 26 27 28 _2-