Nelson v. Arizona, State of

Opinion

1 WO 2 3 4 5

9 Michael Nelson, No. CV-20-02358-PHX-MTL

10 Petitioner, ORDER

11 v. NOT FOR PUBLICATION

12 State of Arizona, et al.,

13 Respondents. 14 15 Before the Court is the Report and Recommendation of the Magistrate Judge 16 (“R & R”) (Doc. 25) recommending that the Court dismiss Petitioner’s Third Amended 17 Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 15) as untimely. Neither 18 party has filed objections to the R & R, and the time to do so has passed.* 19 In reviewing an R & R, this Court “may accept, reject, or modify, in whole or in 20 part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. 21 § 636(b)(1). “[T]he district judge must review the magistrate judge’s findings and 22 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 23 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see Thomas 24 v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts need not conduct “any review 25 at all . . . of any issue that is not the subject of an objection”). No objections having been 26 * Although Petitioner did not file objections to the R & R, he did file a Motion for Subpoena 27 (Doc. 26), a Motion to Compel Discovery (Doc. 27), a Motion for Evidentiary Hearing (Doc. 28), and a Motion for Certificate of Appealability (Doc. 30). Because the Court will 28 accept the Magistrate Judge’s R & R and dismiss Petitioner’s habeas petition, the Court denies as moot Petitioner’s pending motions. (Docs. 26–28, 30.) || received, the Court will accept and adopt the R & R. 2 Based on the foregoing, 3 IT IS ORDERED that the Report and Recommendation (Doc. 25) is accepted; accordingly, 5 1. The Third Amended Petition (Doc. 15) is dismissed with prejudice. 6 2. If Petitioner files an appeal, issuance of a certificate of appealability and leave to proceed in forma pauperis on appeal are denied because dismissal of the Third 8 || Amended Petition is justified by a plain procedural bar. 9 IT IS FURTHER ORDERED that Petitioner’s Motion for Subpoena (Doc. 26), || Motion to Compel Discovery (Doc. 27), Motion for Evidentiary Hearing (Doc. 28), and 11 || Motion for Certificate of Appealability (Doc. 30) are denied as moot. 12 IT IS FINALLY ORDERED that the Clerk of the Court shall enter judgment 13 || accordingly and close this case. 14 Dated this 2nd day of August, 2021. 15 Michal T. Shurde Michael T. Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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