Johnson v. Smith

Filing 14

ORDER that the 13 Report and Recommendation is adopted and the Petition (Doc. 1) is denied and this case is dismissed with prejudice. It is further ordered a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied because Petitioner has not made a substantial showing of the denial of a constitutional right. Signed by Chief Judge Roslyn O Silver on 06/10/11. (ESL)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Johnson, Petitioner, 10 11 vs. 12 D. Smith, Warden - F.C.I. Phoenix, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-10-1221-PHX-ROS (ECV) ORDER 15 16 Pending before the Court is Magistrate Judge Edward C. Voss’ May 16, 2011 Report 17 and Recommendation. (Doc. 13). Magistrate Judge Voss recommends the petition for writ 18 of habeas corpus be dismissed with prejudice. Petitioner did not file any objections. 19 A district judge “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Where any party has 21 filed timely objections to the magistrate judge's report and recommendations, the district 22 court’s review of the part objected to is to be de novo. Id.; see also United States v. Reyna- 23 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 24 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of 25 factual and legal issues is required if objections are made, but not otherwise.”) (internal 26 quotations and citations omitted). No objections being made, the Court will adopt the Report and Recommendation in 27 28 full. 1 Accordingly, 2 IT IS ORDERED the Report and Recommendation is ADOPTED and the Petition 3 (Doc. 1) is DENIED and this case is DISMISSED WITH PREJUDICE. 4 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed in 5 forma pauperis on appeal is DENIED because Petitioner has not made a substantial showing 6 of the denial of a constitutional right. 7 DATED this 10th day of June, 2011. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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