Kynard 298848 v. Shinn ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James Ervin Kynard, No. CV-19-00660-PHX-DJH 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R&R”) 17 (Doc. 14) issued by United States Magistrate Judge John Z. Boyle. 18 Petitioner filed his federal habeas corpus petition on February 1, 2019 (Doc. 1). 19 Respondents filed a Limited Answer on July 19, 2019 (Doc. 13). Petitioner did not file a 20 Reply. On February 3, 2020, Magistrate Judge Boyle found Petitioner’s federal habeas 21 Petition to be untimely without excuse, and recommended Petitioner’s claims be denied 22 and dismissed with prejudice (Doc. 14). Judge Boyle advised the parties that they had 23 fourteen days to file objections and that failure to do so “may result in the acceptance of 24 the Report and Recommendation by the district court without further review.” (Doc. 14 at 25 6) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). 26 Petitioner has not filed an objection and the time to do so has expired. Respondents have 27 also not filed an objection. Absent any objections, the Court is not required to review the 28 findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) || (oting that the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), 2|| “does not on its face require any review at all. . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district 4|| judge must determine de novo any part of the magistrate judge’s disposition that has been || properly objected to.”). 6 Nonetheless, the Court has reviewed Judge Boyle’s well-reasoned R&R and agrees || with its findings and recommendations. The Court will, therefore, accept the R&R and 8 || dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 11 Accordingly, 12 IT IS ORDERED that Magistrate Judge Boyle’s R&R (Doc. 14) is accepted and 13 || adopted as the order of this Court. 14 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 15 || to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. 16 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 18 |} on appeal are denied because dismissal of the Petition is justified by a plain procedural bar || and jurists of reason would not find the procedural ruling debatable. 20 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. 22 Dated this 18th day of May, 2020. 23 24 Ye □□ 25 norable’ Diang/4. Humetewa 26 United States District Judge 27 28 _2-