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Vos v. Ryan

United States District Court, D. Arizona

May 22, 2015

Robert Johannes Jonge Vos, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

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 David K. Duncan (Doc. 18). Pursuant to plea agreements, Petitioner pled guilty to and was convicted of one count of sexual exploitation of a minor and one count of attempted sexual exploitation of a minor. (Doc. 18 at 2). He was sentenced to 17 years in prison on the first conviction and lifetime probation on the second. ( Id. ). He raised three grounds for relief in the Petition, including ineffective assistance of counsel, lack of subject matter jurisdiction, and prosecutorial misconduct. (Doc. 18 at 3). After consideration of the issues, Judge Duncan concluded that the Petitioner's claims are procedurally barred because he failed to fairly present them to the Arizona Court of Appeals. (Doc. 18 at 4-6). Accordingly, Judge Duncan recommends the Petition be dismissed with prejudice. (Doc. 18 at 6).

Judge Duncan advised the parties that they had fourteen days to file objections and that the failure to file timely objections "may result in the acceptance of the Report and Recommendation by the district court without further review." (Doc. 18 at 7) (citing 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 Duncan's R&R (Doc. 18) 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 dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.

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


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