Trammell v. United States of America

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 8 . ORDER that Respondent's Motion to Vacate, Set Aside, or Correct Sentence is denied 1 and 3 . ORDER denying without prejudice Movant's Motion to Terminate Supervised Release 53 . The Cour mak es no ruling on the merits of said Motion. ORDER denying without prejudice Movant's Request for Post Conviction Court Appointed Attorney 55 . The Court makes no ruling on the merits of said Motion. ORDER denying Movant's Certificae of Appealability and Leave to Proceed In Forma Pauperis, as Movant has not made a substantial showing of the denial of a constitutional right. Signed by Judge Mary H Murguia on 1/26/10. (TLJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, vs. Sky Gary Trammell, Defendant/Movant.

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No. CR 04-50178-PHX-MHM CV 09-01085-PHX-MHM ORDER

Movant, Sky Gary Trammell, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on May 20 and May 21, 2009. Respondent filed its response in opposition on September 8, 2009. Movant also filed a Motion to Terminate Supervised Release for Breach of Contract and Petition for Writ of Habeas Corpus pursuant to § 2255 on November 23, 2009. Respondent filed its response in opposition on December 10, 2009. The Magistrate Judge filed his Report and Recommendation on October 30, 2009 recommending that Movant's Motion to Vacate, Set Aside, or Correct Sentence be denied. In his Report and Recommendation the Magistrate Judge advised the parties that they had 10 days from the date of service of a copy of the Report and Recommendation within which to file specific written objections with the Court. The time to file such objections has long since expired and no objections to the Report and Recommendation have been filed. Failure to timely file objections to any factual or legal determination of the Magistrate Judge

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may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). After a complete and independent review of the issues presented, the Court finds itself in agreement with the Report and Recommendation of the Magistrate Judge. In addition, the Court finds that Movant's Motion to Terminate Supervised Release for Breach of Contract and Petition for Writ of Habeas Corpus challenges the execution of his sentence and is not cognizable under 28 U.S.C. § 2255. A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is the appropriate method of challenging the execution of a federal prison sentence. Thus, Movant's Motion to Terminate Supervised Release for Breach of Contract and Petition for Writ of Habeas Corpus will be denied without prejudice. Accordingly, IT IS ORDERED adopting the Report and Recommendation of the Magistrate Judge as the order of this Court. IT IS FURTHER ORDERED that Respondent's Motion to Vacate, Set Aside, or Correct Sentence is denied. [Docs. 1 and 3]. IT IS FURTHER ORDERED denying without prejudice Movant's Motion to Terminate Supervised Release for Breach of Contract and Petition for Writ of Habeas Corpus [Doc. 53]. The Court makes no ruling on the merits of said Motion. IT IS FURTHER ORDERED denying without prejudice Movant's Request for Post Conviction Court Appointed Attorney Necessary to Communicate with the Court [Doc. 55]. The Court makes no ruling on the merits of said Motion. IT IS FURTHER ORDERED denying Movant's Certificate of Appealability and Leave to Proceed In Forma Pauperis, as Movant has not made a substantial showing of the denial of a constitutional right. DATED this 26th day of January, 2010.

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