Johnson v. Shinn ( 2023 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hubert Livingston Johnson, No. CV-22-08228-PCT-DLR 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 Before the Court is Petitioner Hubert Livingston Johnson Petition Under 28 U.S.C. 16 § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) and United 17 States Magistrate Judge Deborah M. Fine’s July 14, 2023, Report and Recommendation 18 (“R&R”) (Doc. 15). The R&R recommends that the Court dismiss the amended petition 19 with prejudice. The Magistrate Judge advised the parties that they had fourteen days1 to 20 file objections to the R&R and that failure to file timely objections could be considered a 21 waiver of the right to obtain review of the R&R. See United States v. Reyna-Tapia, 328 22 F.3d 1114, 1121 (9th Cir. 2003). On August 2, 2023, Petitioner filed a “Motion for: A 23 Telephonic Conference to Explain Why the Petitioner is Requesting a C.O.A. to Return to 24 the Lower Court for an Evidentiary Hearing” (Doc. 16). Petitioner’s motion is not an 25 objection, but if it was construed to be an objection, it is untimely. 26 Neither party has filed timely objections to the R&R, which relieves the Court of its 27 obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 28 1 July 28, 2023, was the fourteenth day from the date of the R&R. U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not... require any review at all... of any □□ issue that is not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge 3|| must determine de novo any part of the magistrate judge’s disposition that has been 4|| properly objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court will accept the R&R in its entirety. See 28 U.S.C. § 636(b)(1) 6|| (stating that the district court “may accept, reject, or modify, in whole or in part, the 7\| findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The 8 || district judge may accept, reject, or modify the recommended disposition; receive further 9|| evidence; or return the matter to the magistrate judge with instructions.”). 10 IT IS ORDERED that the R&R (Doc. 15) is ACCEPTED. 11 IT IS FURTHER ORDERED Petitioner’s petition (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 13 IT IS FURTHER ORDERED that Petitioner’s “Motion for: A Telephonic || Conference to Explain Why the Petitioner is Requesting a C.O.A. to Return to the Lower 15 | Court for an Evidentiary Hearing” (Doc. 16) is DENIED. 16 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed 17|| in forma pauperis on appeal are DENIED because dismissal is justified by a plain 18 || procedural bar and reasonable jurists would not find the procedural ruling debatable. 19 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment || accordingly. 21 Dated this 4th day of August, 2023. 22 23 24 □ {Z, 25 _- Ch 26 Upited States Dictria Judge 27 28 _2-