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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Neal Arthur Herrell, 

Petitioner, 

v. 

James O'Neil, et al., 

Respondents.

No. CV-15-02416-PHX-DJH

ORDER 

 This matter is before the Court on pro se Petitioner’s Petition for Writ of Habeas 

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation (“R 

& R”) by United States Magistrate Judge James F. Metcalf. (Doc. 14). In that R & R, the 

Magistrate Judge determined that the petition is without merit and therefore 

recommended that it be denied. Petitioner timely filed “written objections” to the R & R 

(Doc. 15.) and Respondents filed a response to Petitioner’s objections. (Doc. 16).1

 

A. Standard of Review 

 This Court must “make a de novo determination of those portions of the report or 

specified proposed findings or recommendations to which” Petitioner is objecting. 28 

U.S.C. § 636(b)(1)(C); see also U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 

(emphasis added) (“Neither the Constitution nor the statue requires a district judge to 

 

1

 Thereafter, Plaintiff impermissibly filed a “Response to Respondent’s Response to [his] Objection[]” (Doc. 17). The Court sua sponte strikes this document as 

Fed.R.Civ.P. 72(b)(2) does not allow for such a filing. It only allows for the filing of “specific written objections” to a R & R and a response to those objections. Fed.R.Civ.P. 72(b)(2). 

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review, de novo, findings and recommendations that the parties themselves accept as 

correct.”). A district court, however, “must determine de novo any part of the magistrate 

judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). Further, a 

district 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); see also 28 

U.S.C. § 636(b)(1)(C). 

 B. Analysis 

 As stated above, Petitioner filed what he titled “written objections” to the R&R. 

(Doc. 15). Respondents urge the Court to overrule Petitioner’s objections because they 

are not “specific written objections to the proposed findings and recommendations” as 

Rule 72(b)(2) requires. Specifically, Respondents assert that Petitioner’s purported 

objections “do no more than reiterate his version of the facts . . . and make the same 

general assertions[,]” that are in the Petition. (Doc. 16 at 1:26-28) (emphasis in original). 

The Court agrees. Petitioner’s version of the facts, among other things, omits that he 

failed to object at re-sentencing when the State again requested a consecutive sentence. 

(Doc. 13, exh. P at ¶ 4). Moreover, in his objections Petitioner ridicules the Magistrate 

Judge, among others, as being “mind readers[,]” and backhandedly states that the R & 

R’s analysis is “absolutely ridiculous.” (Doc. 15 at 3:3; 5 at 5). These gratuitous 

comments can hardly be said to be proper, specific objections to the R & R. Thus, even 

liberally construing Petitioner’s objections, the Court finds that they amount to a general 

objection of which this Court has no obligation to review. See Martin v. Ryan, 2014 WL 

5432133, at *2 (D.Ariz. 2014) (citing See, e.g., Warling v. Ryan, 2013 WL 5276367, at 

*2 (D.Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to 

object.’”). Nonetheless, the Court has reviewed the R & R and the record and agrees 

with the Magistrate Judge’s sound analysis and recommendation. 

 Accordingly, 

IT IS ORDERED that Magistrate Judge James F. Metcalf’s R & R (Doc. 14) is 

accepted and adopted as an order of this Court. 

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice. 

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 

Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 

on appeal are denied because Petition has not made a substantial showing of the denial of 

a constitutional right. 

IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action 

and enter judgment accordingly. 

Dated this 16th day of September, 2016. 

Honorable Diane J. Humetewa

United States District Judge 

Case 2:15-cv-02416-DJH Document 18 Filed 09/19/16 Page 3 of 3