Opinion
No. CV 05-0976-PHX-ROS.
January 24, 2006
ORDER
Pending before the Court is Magistrate Judge Lawrence O. Anderson's Report and Recommendation ("RR") filed on July 18, 2005. (Doc. # 21). Judge Anderson recommends that the Court deny Plaintiff Fox Salerno's Motion for Bail, which was filed on July 11, 2005 pursuant to 28 U.S.C. § 2254. (Doc.# 19). Petitioner filed no objections. For the reasons set forth below, the Court will adopt the RR and deny Petitioner's Motion for Bail.
I. STANDARD OF REVIEW
Pursuant to the Federal Magistrates Act, 28 U.S.C. § 636, a "district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions."Thomas v. Arn, 474 U.S. 140, 141 (1985); see 28 U.S.C. § 636(b)(1)(B); Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party who disagrees with the magistrate's recommendations "may serve and file written objections." 28 U.S.C. § 636(b)(1). "A judge of the court shall make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." Id. "[P]arties who do not object to a magistrate's report waive their right to challenge the magistrate's factual findings but retain their right to appeal the magistrate's conclusions of law." Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991); see Jones v. Wood, 207 F.3d 557, 562 n. 2 (9th Cir. 2000) ("Failure to object to a magistrate judge's recommendation waives all objections to the judge's findings of fact."); Thomas, 474 U.S. at 149 ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); see also Fed.R.Civ.P. 72(b). A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see Fed.R.Civ.P. 72(b). Finally, the decision of whether to issue a separate written opinion is entirely within the district court's discretion. See Boniface v. Carlson, 881 F.2d 669, 672 (9th Cir. 1989) (affirming Arizona district court's decision to adopt magistrate's RR without written opinion and stating: "Petitioner's . . . claim that the district court erred in adopting the magistrate's [RR] without a written opinion is without merit since the necessity of a separate opinion is entirely within the discretion of the judge.").
II. ANALYSIS
Petitioner contends that he should be released from State custody because the State has delayed in responding to his Writ of Habeas Corpus and that this delay has prejudiced him.
The applicable standard in the Ninth Circuit for bail in a habeas case is whether the matter involves "special circumstances or a high probability of success." Land v. Deeds, 878 F.2d 318 (9th Cir. 1989) (holding that petitioner failed to demonstrate that he was entitled to release). See also United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (finding that petitioners failed to demonstrate extraordinary circumstances or a high probability of success).
In applying this standard, Magistrate Judge Anderson found that Petitioner had not established either special circumstances or a high probability of success. See Mett, 41 F.3d for Extension of Time to file an Answer on June 14, 2005. (Doc. #14, Doc. #17). The Court granted a second motion for extension of time on August 9, 2005. (Doc. #18, Doc. 23). The Court agrees with Magistrate Judge Anderson's finding that these requests were reasonable and did not prejudice Petitioner in any manner.
Because Petitioner has not established a high probability of success or the existence of special circumstances, the Motion for Bail fails to meet the required legal standard. As a result, the Court adopts Magistrate Judge's RR that the Motion for Bail be denied.
Accordingly,
IT IS ORDERED that Magistrate Judge Anderson's RR to deny Petitioner's Motion For Bail be ADOPTED (Doc. #21).
IT IS FURTHER ORDERED that Petitioner's Motion For Bail be DENIED (Doc. #19).