Opinion
Nos. CV-04-2107-PHX-SMM (CRP), CR-02-1273-PHX-SMM.
November 23, 2005
ORDER
Pending before the Court is Petitioner Pedro Leal-Castro's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. [CR Doc. No. 121] On September 8, 2005, Magistrate Judge Charles Pyle filed a Report and Recommendation, advising this Court that Petitioner's Motion should be denied. [CR Doc. No. 128] To date, Petitioner has not filed objections to Judge Pyle's Report and Recommendation.
STANDARD OF REVIEW
When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "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)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting de novo review of the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citingCampbell v. United States Dist. Court, 501 F.2d 196 (9th Cir. 1974)).
By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate's factual findings, but not necessarily the Magistrate's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).
DISCUSSION
Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Petitioner thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation with the following modifications
(1) At page 5, line 4, change "United States v. Carey, 382 F.3d 387, 398 (3rd Cir. 2004)" to "United States v. Carey, 382 f.3d 387, 387 n. 1 (3rd Cir. 2004)."
(2) At page 7, line 28, change "Wainwright v. Sykes, 433 U.S. 72, 97" to "Wainwright v. Sykes, 433 U.S. 72, 87."
CONCLUSION
For the reasons set forth,
IT IS ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Charles Pyle. [CR-02-1273 Doc. No. 128]
IT IS FURTHER ORDERED that Petitioner's Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody [CR-02-1273 Doc. No. 121] is DENIED, thus terminating this case, CV 04-2107-PHX-SMM. IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge Charles Pyle.