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Cham v. Gurule

United States District Court, D. Arizona

February 17, 2015

Mustapha Cham, Petitioner,
v.
Jon M. Gurule, Respondent.

ORDER

DIANE J. HUMETEWA, District Judge.

This matter is before the Court on Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), and the Report and Recommendation ("R&R") issued on January 23, 2015, by United States Magistrate Judge Michelle H. Burns (Doc. 17). Also pending before the Court is Petitioner's Motion for Immediate Release (Doc. 12), which the Magistrate Judge accurately described as "duplicative of [Petitioner's] habeas petition." R & R (Doc. 17) at 19-20.

Since the filing of his Petition, the United States Immigration and Customs Enforcement ("ICE") agency granted Petitioner release from its custody. R & R (Doc. 17) at 2:5-7. As the R & R accurately explains, that release moots the Petition. ( Id. at 2:7-10). After Respondent filed a Notice to Court and Suggestion of Mootness based upon Petitioner's release from ICE custody, the Magistrate Judge issued an Order to Show Cause, requiring Petitioner to file a response thereto showing why his Petition should not be dismissed as moot. See Doc. 16. When Petitioner did not respond, and because Petitioner had been granted the relief he sought in his Petition, the Magistrate Judge recommended dismissing his 28 U.S.C. § 2241 Petition as moot and without prejudice. R & R (Doc. 17) at 2:16-19.

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."); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (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 recommendation. The Court will, therefore, accept the R&R, and dismiss the Petition as moot and without prejudice. 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).

Additionally, the Court finds that based upon the foregoing Petitioner's Motion for Immediate Release (Doc. 12) is denied as moot.

Accordingly,

IT IS ORDERED ACCEPTING AND ADOPTING as an Order of this Court Magistrate Judge Burns' R&R (Doc. 17);

IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE the Petition Under 28 U.S.C. 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1);

IT IS FURTHER ORDERED DENYING as moot Petitioner's Motion for Immediate Release (Doc. 12); and

IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.


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