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Poole v. Lothrop

United States District Court, D. Arizona

May 8, 2019

Tywan A. Poole, Petitioner,
v.
William W. Lothrop, Respondent.

          ORDER

          G. Murray Snow Chief United States District Judge

         Pending 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.

         BACKGROUND

         Because 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.

         DISCUSSION

         I. Legal Standards

         This 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).

         II. Analysis

         A. Poole's Motion for Summary Judgment

         Poole's 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.

         The 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.

         The 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).”).

         Since Lothrop's answer was timely and complied with the Magistrate Judge's order, Poole's Motion for summary judgment is denied.

         B. Poole's ...


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