Beasley v. Shinn ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Telly Onturio Beasley, No. CV-18-02680-PHX-RCC 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 On November 25, 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 Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a 18 Person in State Custody (Non-Death Penalty) (“Petition”). (Doc. 12.) The R&R notified 19 the parties they had fourteen (14) days from the date of the R&R to file any objections. 20 No objections have been filed. However, on December 23, 2019, Petitioner filed a Notice 21 of Appeal from a Judgment or Order of a United States District Court. (Doc. 13.) 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 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. 12.) 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. 11), and Judge Ferraro’s R&R (Doc. 12). The Court finds the R&R well-reasoned □□ and agrees with Judge Ferraro’s conclusions. 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 by a Person in State 17 Custody (Non-Death Penalty) is DENIED (Doc. 1). The Clerk of Court shall docket 18 accordingly and close the case file in this matter. 19 Dated this 30th day of December, 2019. 20 21 4] 4 sernior United States District Judge 25 26 27 28 _2-