United States District Court, D. Arizona
Tywan A. Poole, Petitioner,
William W. Lothrop, Respondent.
Murray Snow Chief United States District Judge
before the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Deborah M. Fine, which recommends that Petitioner Tywan A.
Poole's Amended Petition for Writ of Habeas Corpus (Doc.
15) be dismissed with prejudice, and that his Motion for
Summary Judgment (Doc. 25) and Motion for Judgement Order of
Writ of Habeas Corpus (Doc. 29) be denied. Poole timely filed
objections to the R&R, and Respondent William W. Lothrop
responded. For the following reasons the R&R is accepted,
Petitioner's Amended Petition is dismissed with
prejudice, and his two other Motions are denied.
no party has objected to the factual and procedural
background set forth in the R&R, the Court adopts the
background as an accurate account.
court “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). “[T]he
district judge must review the magistrate judge's
findings and recommendations de novo if objection is
made, but not otherwise. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original). District courts are not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985).
Poole's Motion for Summary Judgment
Motion for Summary judgment argues that (1) Lothrop's
Answer to his Petition was untimely and (2) Lothrop's
Answer failed to follow the Magistrate Judge's order that
a dispositive motion could not be filed in place of an answer
without first showing cause demonstrating that an answer
would be inadequate.
R&R correctly concluded that Lothrop's Answer was
timely. The Magistrate Judge ordered Lothrop to file his
Answer within twenty days of the date of service of the
Petition. (Doc. 16.) The docket indicates that service was
executed on August 15, 2018. (Doc. 19.) Since Lothrop filed
his Answer on September 4, 2018, it was timely filed within
twenty days of the date of service.
R&R also correctly concluded that Lothrop's Answer
complied with the Magistrate Judge's order. The Rules
Governing Section 2254 Cases in the United States District
Courts require a Respondent, in answering a Petition, to
“address the allegations in the petition” and to
“state whether any claim in the petition is barred by a
failure to exhaust state remedies, a procedural bar,
non-retroactivity, or a statute of limitations.” Rule
5(b), 28 U.S.C. fol. § 2254. Even though Poole's
Petition was brought under § 2241 rather than §
2254, it is not error to apply the Rules Governing §
2254 cases to cases brought under § 2241. Lane v.
Feather, 584 Fed.Appx. 843 (9th Cir. 2014); Rule 1(b),
28 U.S.C. fol. § 2254 (“The district court may
apply any or all of these rules to a habeas corpus petition
not covered by Rule 1(a).”).
Lothrop's answer was timely and complied with the
Magistrate Judge's order, Poole's Motion for summary
judgment is denied.