Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 This matter arises on Movant's Motion for Summary Judgment pursuant to 28 U.S.C. 16 17 18 19 20 21 22 23 24 25 26 27 28 § 2255 [Doc. No. 154] filed on June 21, 2005. The matter was referred to Magistrate Judge Lawrence O. Anderson for Report and Recommendation. On August 8, 2005, the Magistrate Judge filed a Report and Recommendation with this Court. Movant filed an objection to the Report and Recommendation on August 17, 2005. 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." 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. Orand v. United States, 602 F.2d 207 (9th Cir. 1979) (citing Campbell v. United States Dist. Court, 501 F.2d ) ) ) Plaintiff/Respondent, ) ) vs. ) ) FRANCISCO GONZALEZ-CISNEROS, ) ) ) Defendant/Movant. ) ) UNITED STATES OF AMERICA, No. CR 01-118-PHX-SMM CV 05-882-PHX-SMM (LOA) MEMORANDUM OF DECISION AND ORDER IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Case 2:01-cr-00118-SMM

Document 171

Filed 09/12/2005

Page 1 of 3

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196 (9th Cir. 1974)); see also Barilla v. Ervin, 886 F.2d 1514 (9th Cir. 1989) (overruled on other grounds). A failure to object to a Magistrate Judge's conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal." Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Baxter, 923 F.2d at 1394; Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)). DISCUSSION Movant asserts that his Motion for Summary Judgment should be summarily granted for Respondents failure to timely file a Response. However, the Magistrate Judge granted Respondents an extension of time by which to file a Response, and deemed the Response timely submitted upon its submission. [Doc. No. 163]. The Magistrate Judge notes that Respondent's delay in filing the Response did not prejudice Movant or otherwise adversely impact his § 2255 proceedings. Additionally, the Magistrate Judge noted that Movant has not established that summary judgment motions are appropriately filed in § 2255 proceedings or that he is entitled to such relief. Movant now objects to the Report and Recommendation, citing United States v. Booker (Fanfan), 125 S. Ct. 738 (2005). Booker and Fanfan have no bearing on the Magistrate Judge's decision to grant Respondent an extension. In short, Movant has asserted no argument warranting modification of the Report and Recommendation, and therefore, having reviewed the Report and Recommendation of the Magistrate Judge, the Court adopts the Report and Recommendation. /// /// /// /// /// /// /// /// -2Case 2:01-cr-00118-SMM Document 171 Filed 09/12/2005 Page 2 of 3

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CONCLUSION AND ORDER For the reasons set forth, IT IS ORDERED that the Court adopts the Report and Recommendation of the Magistrate Judge [Doc. No. 162].

DATED this 9th day of September, 2005.

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