Capes v. Ryan et al, No. 2:2011cv00507 - Document 24 (D. Ariz. 2012)

Court Description: MEMORANDUM OF DECISION AND ORDER approving, incorporating, and adopting the Report and Recommendation 22 . ORDER that Petitioner's Amended Petition for Writ of Habeas Corpus pursuant to 28:2254 is DENIED and DISMISSED WITH PREJUDICE 5 . ORDER DENYING issuance of a Certificate of Appealability. Signed by Judge Stephen M McNamee on 3/16/12. (TLJ)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John William Capes, Petitioner, 10 11 vs. 12 Charles Ryan, et al., 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV-11-507-PHX-SMM (MHM) MEMORANDUM OF DECISION AND ORDER On February 14, 2012, Magistrate Judge Michelle Burns filed a Report and Recommendation advising this Court that Petitioner s Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the Amended Petition ) (Doc. 5) was denied on the ground that the claims in the Amended Petition failed to constitute a cognizable basis for federal habeas relief. (See Doc. 22.) To date, no objections have been filed. STANDARD OF REVIEW When reviewing a Magistrate Judge s Report and Recommendation, this Court must make a de novo determination of those portions of the report . . . to which objection is made, and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge s recommendation relieves the Court of conducting de novo review of the Magistrate Judge s factual findings; the Court then may decide the dispositive motion on the applicable law. 1 Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States 2 Dist. Court, 501 F.2d 196 (9th Cir. 1974)). 3 By failing to object to a Report and Recommendation, a party waives its right to 4 challenge the Magistrate Judge s factual findings, but not necessarily the Magistrate Judge s 5 legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 6 (9th Cir. 1998) (failure to object to a Magistrate Judge s legal conclusion is a factor to be 7 weighed in considering the propriety of finding waiver of an issue on appeal ); Martinez v. 8 Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 9 (9th Cir. 1980)). DISCUSSION 10 11 Having reviewed the legal conclusions of the Report and Recommendation of the 12 Magistrate Judge, and no objections having been made by the Petitioner, the Court hereby 13 incorporates and adopts the Magistrate Judge s Report and Recommendation. CONCLUSION 14 15 For the reasons set forth, 16 IT IS HEREBY ORDERED approving, incorporating, and adopting the Report and 17 Recommendation of Magistrate Judge Michelle Burns. (Doc. 22.) 18 IT IS FURTHER ORDERED that Petitioner s Amended Petition for Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE. 20 (Doc. 5.) 21 IT IS FURTHER ORDERED DENYING issuance of a Certificate of Appealability. 22 See Rule 11(a), 28 U.S.C. foll. § 2254. Petitioner has failed to make a substantial showing 23 of the denial of a constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). 24 DATED this 16th day of March, 2012. 25 26 27 28 -2-