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CAIN v. RYAN, CV-13-02011-PHX-DGC. (2014)

Court: District Court, D. Arizona Number: infdco20140710865 Visitors: 12
Filed: Jul. 09, 2014
Latest Update: Jul. 09, 2014
Summary: ORDER DAVID G. CAMPBELL, District Judge. Petitioner Darnell Cain filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2013. Doc. 1. On March 28, 2014, United States Magistrate Judge James F. Metcalf issued a report and recommendation ("R&R") recommending that the petition be dismissed with prejudice and that a Certificate of Appealability be denied. Doc. 12 at 15. On May 13, 2014, the Court accepted the R&R because Petitioner had filed no objections to the R&R. Doc. 13. The Court
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ORDER

DAVID G. CAMPBELL, District Judge.

Petitioner Darnell Cain filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2013. Doc. 1. On March 28, 2014, United States Magistrate Judge James F. Metcalf issued a report and recommendation ("R&R") recommending that the petition be dismissed with prejudice and that a Certificate of Appealability be denied. Doc. 12 at 15. On May 13, 2014, the Court accepted the R&R because Petitioner had filed no objections to the R&R. Doc. 13. The Court also denied a Certificate of Appealability. Id. On May 15, 2014, Petitioner filed a "Supplemental Brief." Doc. 15. On May 22, 2014, Petitioner filed a motion urging the Court to reconsider the supplemental brief because it contained objections to the R&R. Doc. 16 at 1-2.

Petitioner had 14 days to file objections to the R&R. Fed. R. Civ. P. 72(b)(2). The R&R was filed on March 28, 2014. Doc. 12. As of May 13, 2014 — more than 45 days later — Petitioner had filed no objection. The Court accordingly approved the R&R.

The R&R specifically warned Petitioner about the 14-day time limit and that "[f]ailure to timely file objections to any findings or recommendations . . . will be considered a waiver of a party's right to de novo consideration of the issues." Doc. 12 at 15; see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Fed. R. Civ. P. 72, Advisory Comm. Notes, 1991 Am. ("[O]bjections to magistrate's orders that are not timely made shall not be considered."). The R&R further warned that such failure "will constitute a waiver of [Petitioner's] right to appellate review of the findings of fact in an order or judgment entered pursuant to the [R&R]." Doc. 12 at 15; see Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Because Petitioner's supplemental brief was filed well outside of the 14-day filing period, he has waived his right to review.

Petitioner's motion to reconsider provides no justification for his untimely objection to the R&R, but does note that Petitioner is untrained in the law. Petitioner's lack of legal training does not, however, excuse his failure to comply with the clear time limit for objecting to the R&R. Meeks Junior v. Wells Fargo Bank, No. 2:13-cv-1261 KJM DAD PS, 2014 WL 295171, at *1 (E.D. Cal. Jan. 27, 2014) ("Any individual representing himself or herself . . . is nonetheless bound by the Federal Rules of Civil Procedure, the Local Rules, and all applicable law.").

IT IS ORDERED that Petitioner's motion to reconsider the supplemental brief (Doc. 16) is denied.

Source:  Leagle

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