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Abdulla v. Ryan, CV-15-01487-PHX-DJH. (2017)

Court: District Court, D. Arizona Number: infdco20170501i21 Visitors: 7
Filed: Apr. 26, 2017
Latest Update: Apr. 26, 2017
Summary: ORDER DIANE J. HUMETEWA , District Judge . This matter is before the Court on Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Doc. 15) and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Michelle H. Burns (Doc. 29). Following a jury trial in January and February 2012, Petitioner was convicted of two counts of first-degree murder. (Doc. 15 at 3). He was sentenced to consecutive life terms in prison with the possibility of p
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ORDER

This matter is before the Court on Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 15) and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Michelle H. Burns (Doc. 29). Following a jury trial in January and February 2012, Petitioner was convicted of two counts of first-degree murder. (Doc. 15 at 3). He was sentenced to consecutive life terms in prison with the possibility of parole after 25 years. (Id.). Petitioner raised four grounds for relief in the Petition, including an alleged violation of his Miranda rights in Ground One, and several claims of ineffective assistance of counsel in Grounds Two, Three and Four. (Doc. 15 at 5-6). After consideration of the issues, Judge Burns concluded that Petitioner's Miranda claim lacks merit, and that the remaining claims of ineffective assistance of counsel are procedurally defaulted. (Doc. 15 at 28). Accordingly, Judge Burns recommends the Petition be denied and dismissed with prejudice. (Id.).

Judge Burns advised the parties that they had fourteen days to file objections and that the failure to file timely objections "may result in the acceptance of the Report and Recommendation by the district court without further review." (Doc. 15 at 28-29) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Petitioner has not filed an objection and the time to do so has expired. Respondents have also not filed an objection. Absent any objections, the Court is not required to review the findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "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 judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").

Nonetheless, the Court has reviewed Judge Burns' comprehensive and well-reasoned R&R and agrees with its findings and recommendations. The Court will, therefore, accept the R&R and deny the Petition. See 28 U.S.C. § 636(b)(1)(C) ("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).

Accordingly,

IT IS ORDERED that Magistrate Judge Burns' R&R (Doc. 29) is accepted and adopted as the order of this Court.

IT IS FURTHER ORDERED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 15) is denied and dismissed with prejudice.

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 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, and Petitioner has not made a substantial showing of the denial of a constitutional right.. . . .

IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.

Source:  Leagle

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