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Sharp v. Ryan

United States District Court, D. Arizona

August 6, 2014

Jason Lawrence Sharp, Petitioner,
v.
Charles L. Ryan, Respondent.

ORDER

DIANE J. HUMETEWA, District Judge.

This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Mark E. Aspey (Doc. 13). In his one claim for relief in the Petition, Petitioner alleges that his trial counsel provided ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendment when he failed to call as witnesses Petitioner's three children, his nephew and his cousin, who he claims were present at the time he committed the offenses for which he was convicted. After a thorough analysis, Judge Aspey determined that the Arizona state courts' rejection of Petitioner's claim was not contrary to or an unreasonable application of the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, Judge Aspey recommends the Petition be denied.

Judge Aspey advised the parties that they had fourteen day to file objections and that the failure to file timely objections "will be considered a waiver of a party's right to de novo appellate consideration of the issues." (Doc. 13 at 11-12) (citing Fed.R.Civ.P. 72(b) and United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc )). The parties have not filed objections and the time to do so has expired. 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 the 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 Aspey's R&R (Doc. 13) is accepted and adopted as the order of this Court.

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) 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 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.


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