Opinion
No. CV-14-01866-PHX-DJH
02-19-2015
Jesus Reyes, Petitioner, v. Conrad Graber, Respondent.
ORDER
This matter is before the Court on Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1), and the Report and Recommendation ("R&R") issued on January 28, 2015, by United States Magistrate Judge James F. Metcalf (Doc. 13). Since the filing of his Petition, Petitioner has received the relief he sought therein, i.e., he has been deemed eligible for early release consideration under 18 U.S.C. § 3621(e). Therefore, in its response to the Petition, the Respondent sought dismissal of the Petition due to lack of subject matter jurisdiction based upon mootness. Petitioner was allowed to file a reply, but he did not. See R & R (Doc. 13) at 3:2-4.
Agreeing with the Respondent, Magistrate Judge Metcalf correctly found that this Petition is moot and hence subject matter jurisdiction is lacking. See R & R (Doc. 13) at 3:6 - 4:14. The Magistrate Judge therefore recommended dismissing the Petition without prejudice. (Id. at 4:27-5:1). The Magistrate Judge also correctly made no recommendation as to a Certificate of Appealability because "[t]his case arises under 28 U.S.C. § 2241, and does not attack a State court detention." (Id. at 4:22-23).
The parties have not filed any objections to the R&R and the time to do so has expired. Absent any objections, the Court is not required to review the findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "does not on its face require any review at all . . . of any issue that is not the subject of an objection."); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); 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.").
Nonetheless, the Court has reviewed the R&R and agrees with its recommendation. The Court will, therefore, accept the R&R, and dismiss the Petition as moot and without prejudice. See 28 U.S.C. § 636(b)(1)(C) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Fed.R.Civ.P. 72(b)(3) (same).
Accordingly,
IT IS ORDERED ACCEPTING AND ADOPTING as an Order of this Court Magistrate Judge Metcalf's R&R (Doc. 13);
IT IS FURTHER ORDERED DISMISSING WITHOUT PREJUDICE the Petition Under 28 U.S.C. 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1);
IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.
Dated this 19th day of February, 2015.
/s/_________
Honorable Diane J. Humetewa
United States District Judge