Smith v. Ryan ( 2019 )

1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Steven Alfred Smith, ) No. CV-18-03349-PHX-SPL ) 9 ) 10 Petitioner, ) ORDER vs. ) ) 11 ) Charles L. Ryan, et al., ) 12 ) 13 Respondents. ) ) 14 ) 15 Petitioner Steven Alfred Smith has filed a Petition for Writ of Habeas Corpus 16 pursuant to 28 U.S.C. § 2254. (Doc. 1). The Honorable Michelle H. Burns, United States 17 Magistrate Judge, issued a Report and Recommendation (“R&R”), recommending that the 18 Court deny the Petition. (Doc. 12). Judge Burns advised the parties that they had fourteen 19 (14) days to file objections to the R&R and that failure to file timely objections could be 20 considered a waiver of the right to obtain review of the R&R. (Doc. 12) (citing 28 U.S.C. § 21 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 22 Cir. 2003)). 23 The parties did not file objections, which relieves the Court of its obligation to 24 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 25 (1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is 26 not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must 27 determine de novo any part of the magistrate judge’s disposition that has been properly 28 objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court will adopt the R&R and deny the Petition. See 28 U.S.C. § 636(b)(1) (stating 2| that the district court “may accept, reject, or modify, in whole or in part, the findings or 3 | recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge 4) may accept, reject, or modify the recommended disposition; receive further evidence; or 5| return the matter to the magistrate judge with instructions.”). 6 Petitioner has also filed a Motion for Evidentiary Hearing to “establish [his] actual 7 | innocence that the state attorney convicted and sentence[d] the wrong person into prison.” 8 | (Doc. 13). Again, and as previously addressed by Judge Burns, Petitioner has made only abare assertion of actual innocence and has failed to identify any new evidence to support 10| claim. Thus, the motion with be denied. Accordingly, 11 IT IS ORDERED: 12 1. That Magistrate Judge Michelle H. Burns’ Report and Recommendation 13 | (Doc. 12) is accepted and adopted by the Court; 14 2. That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 15 | (Doc. 1) is denied and dismissed with prejudice; 16 3. That Petitioner’s Motion for Evidentiary Hearing (Doc. 13) is denied; 17 4. That a certificate of appealability and leave to proceed in forma pauperis on 18 | appeal are denied; and 19 5. That the Clerk of Court shall terminate this action. 20 Dated this 23rd day of October, 2019. 21 22 Ake 23 United States District kadge 24 25 26 27 28