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finding the petitioner was not entitled to habeas relief when the challenged instruction, in the context of all of the instructions given to the jury, did not have the effect of relieving the state of the burden of proof
Summary of this case from Thornton v. HaynesOpinion
No. CV-13-01320-PHX-DLR
04-16-2015
Sean Patrick Husband, Petitioner, v. Charles L. Ryan, et al., Respondents.
ORDER
Pending before the Court are Petitioner Sean Patrick Husband's Petition for Writ of Habeas Corpus and United States Magistrate Judge Mark E. Aspey's Report and Recommendation ("R&R"). (Docs. 1, 41.) The R&R recommends that the Court deny the Petition. (Doc. 41 at 38.) The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R and that failure to file timely objections could be considered a waiver of the right to obtain review of the R&R. (Id. at 38-39 (citing Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)).
Respondents did not file an objection. Petitioner filed an objection on February 9, 2015, which the Court struck on March 18, 2015, for failure to comply with the Local Rules of Civil Procedure. (Doc. 49.) The Court granted Petitioner leave to file an amended objection by April 2, 2015. (Id.) Petitioner did not file an amended objection, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court will accept the R&R and deny the Petition. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate"); Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.").
IT IS ORDERED that Magistrate Judge Aspey's R&R (Doc. 41) is accepted.
IT IS FURTHER ORDERED that Petitioner's Petition for Writ ofHabeas Corpus (Doc. 1) is dismissed.
IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action.
Dated this 16th day of April, 2015.
/s/_________
Douglas L. Rayes
United States District Judge