Lewis v. Howard

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jerry Lee Lewis, No. CV-21-00043-TUC-DCB 10 Petitioner, ORDER 11 v. 12 C. Howard, 13 Respondent. [14] 15 This matter was referred to Magistrate Judge Leslie A. Bowman, pursuant to Rules 16 of Practice for the United States District Court, District of Arizona (Local Rules), Rule 17 (Civil) 72.1(a). She issued a Report and Recommendation (R&R) on February 7, 2022. 18 (Doc. 29: R&R). She recommends denying the habeas petition because the Petitioner is not 19 entitled relief, pursuant to 28 U.S.C. § 2241 . He seeks to have reinstatement of good time 20 credits, but he is serving a life sentence and, therefore, not entitled to good time credits. 21 There is no basis in law for this Court to expunge the incident from his record. The Court 22 adopts the R&R, including the recommendation to deny the Petition. 23 STANDARD OF REVIEW 24 The duties of the district court, when reviewing a R&R, are set forth in Rule 72 of 25 the Federal Rules of Civil Procedure and 28 U.S.C. § 636 (b)(1). The district court may 26 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 27 the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636 (b)(1). When the parties object 28 to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those 1 portions of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140 , 149-50 2 (1985) (quoting 28 U.S.C. § 636 (b)(1)). When no objections are filed, the district court 3 does not need to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992 , 1000 n. 13 4 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en 5 banc). 6 The parties were sent copies of the R&R and instructed they had 14 days to file 7 written objections. 28 U.S.C. § 636 (b), see also, Federal Rule of Criminal Procedure 72 8 (party objecting to the recommended disposition has fourteen (14) days to file specific, 9 written objections). To date, no objections have been filed. 10 REPORT AND RECOMMENDATION 11 There are no objections and, therefore, eview has been waived, the Court 12 nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. 13 Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 14 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); 15 Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will 16 not ordinarily waive question of law but is a factor in considering the propriety of finding 17 waiver)). The Court finds the R&R to be thorough and well-reasoned, without any clear 18 error in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) 19 (citing 28 U.S.C. § 636 (b)(1)(A) as providing for district court to reconsider matters 20 delegated to magistrate judge when there is clear error or recommendation is contrary to 21 law). The Court accepts and adopts the R&R as the opinion of the Court, including findings 22 of fact and law, pursuant to 28 U.S.C. § 636 (b)(1). For the reasons stated in the R&R, the 23 Court denies the Petition because the Petitioner is not entitled to relief as a matter of law. 24 Accordingly, 25 IT IS ORDERED that the Report and Recommendation (Doc. 29) is adopted as the 26 opinion of the Court. 27 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 28 accordingly. 1 IT IS FURTHER ORDERED that Plaintiff proceeding here in forma pauperis 2\| under 28 U.S.C. § 2241 , in the event the Plaintiff files an appeal, the Court finds the appeal || is not taken in good faith because an appeal would be frivolous as there is no substantial 4|| argument to be made contrary to this Court’s determination recorded here. 28 U.S.C. 5 || 1915(a)(3) and FRAP 24(a); Cruz v. Hauck, 404 U.S. 59, 62 (1971). 6 Dated this 17th day of March, 2022. [7] SS SY Honorabje David C. But United States District Judge [28] -3-