Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, vs. Francisco Gonzalez-Cisneros, Defendant/Movant.

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No. CR 01-118 PHX-SMM CV 05-882 PHX-SMM (LOA) REPORT AND RECOMMENDATION

This matter arises on Movant's Motion for Summary Judgment (document # 154). Movant requests that the Court enter judgment in Movant's favor on his Motion pursuant to 28 U.S.C. § 2255. Movant claims that because Respondent has failed to file a timely response to his motion, the Court should summarily grant Movant relief. Although Respondent failed to file a timely Response to the § 2255 Motion, Respondent requested an extension of time in which to do so. The Court granted that request and deemed Respondent's Response timely filed. Respondent's delay in filing the response did not prejudice Movant or otherwise adversely impact his § 2255 proceedings. Moreover, Movant has not established that summary judgment motions are appropriately filed in § 2255 proceedings or that he is entitled to such relief. Accordingly, /// ///

Case 2:01-cr-00118-SMM

Document 162

Filed 08/08/2005

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IT IS HEREBY RECOMMENDED that Movant's Motion for Summary Judgment (document # 154) be DENIED. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court=s judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. ' 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party=s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge=s recommendation. See, Rule 72, Federal Rules of Civil Procedure. DATED this 8th day of August, 2005.

Case 2:01-cr-00118-SMM

-2Document 162 Filed 08/08/2005

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