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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Benjamin Scott Hammar, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents.

No. CV-15-01940-PHX-DLR

ORDER 

 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 

Bridget Bade, which recommends denying Petitioner Benjamin Hammar’s Petition for 

Writ of Habeas Corpus. (Doc. 14.) It also recommends denying Petitioner a certificate 

of appealability and leave to proceed in forma pauperis on appeal. (Id. at 21.) 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 22 (citing Fed. R. Civ. P. 72(b); United States v. 

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). 

 Neither party filed objections, 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.”). 

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The Court has nonetheless reviewed the R&R and agrees with Magistrate Judge Bade’s 

recommendations. 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.”). 

 Petitioner has also filed a Motion to Dismiss Case Without Prejudice, or, in the 

Alternative Stay in Abeyance. (Doc. 15.) Petitioner requests that the Court permit him to 

voluntarily dismiss his case while he exhausts his state court remedies for some of his 

claims. (Id. at 6.) However, the R&R recommends dismissing the Petition in part 

because Petitioner’s claims are procedurally barred. (Doc. 14 at 9-10.) As such, 

Petitioner is unable to return to state court to exhaust his remedies, and his claims fail. 

(Id. at 9 (“In summary, Petitioner did not present the federal claims asserted in Grounds 

Two, Three (a), and Three (c) to the Arizona Court of Appeals either on direct appeal or 

post-conviction review. Those claims are technically exhausted and procedurally barred 

because it would be futile for Petitioner to return to the state courts to try to exhaust those 

claims.”). The motion is denied. 

IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 14) is ACCEPTED, 

Petitioner’s Motion to Dismiss, (Doc. 15), is DENIED, Petitioner’s Petition for Writ of 

Habeas Corpus, (Doc. 1), is DISMISSED, a Certificate of Appealability is DENIED, 

and Petitioner may not proceed in forma pauperis on appeal. The Clerk shall terminate 

this action. 

 Dated this 27th day of April, 2016. 

Douglas L. Rayes 

United States District Judge

Case 2:15-cv-01940-DLR Document 16 Filed 04/27/16 Page 2 of 2