Summary
analyzing the timeliness of a habeas petition by first determining whether the petitioner was challenging his sentence upon original conviction or sentence upon revocation of probation
Summary of this case from Howe v. RyanOpinion
No. CV-10-2215-PHX-ROS
12-16-2011
James Michael Morgan, Petitioner, v. Charles L. Ryan, et. al., Respondents.
ORDER
On November 28, 2011, the magistrate judge issued a Report and Recommendation. (Doc. 38). Plaintiff has not objected to the Report and Recommendation. No objections being made, the Court will adopt the Report and Recommendation in full.
A district judge "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). Where any party has filed timely objections to the magistrate judge's report and recommendations, the district court's review of the part objected to is to be de novo. Id.; see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, but not otherwise.") (internal quotations and citations omitted).
Accordingly,
IT IS ORDERED the Report and Recommendation (Doc. 38) is ADOPTED.
IT IS ORDERED the Petitioner for Writ of Habeas Corpus (Doc. 1) is DISMISSED WITH PREJUDICE as time barred.
IT IS ORDERED a Certificate of Appealability and leave to proceed in forma pauperis on appeal is denied because the denial of the motion is justified by a plain procedural bar.
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Roslyn O. Silver
Chief United States District Judge