Mitchell v. United States of America

Filing 24

ORDER denying 22 motion to deem Rule 60(b) motion as timely filed. Petitioner shall file no further motions in this action. Signed by Judge David G Campbell on 7/26/2013.(TCA)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV-11-00580-PHX-DGC CR-05-0886-PHX-DGC Devon Mitchell, Petitioner, 10 ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 Petitioner Devon Mitchell has filed a motion asking the Court to consider his 16 Rule 60(b) motion as timely filed. Doc. 22. After examining the Court’s dockets, the 17 Court finds that Petitioner filed his Rule 60(b) motion in his criminal case (CR-05-0886, 18 Doc. 335), not in this habeas case. Even if the Court were to deem the motion as timely 19 filed, however, the Court would deny it. 20 Petitioner’s Rule 60(b) motion restates argument B from his habeas petition – that 21 the government failed to present sufficient evidence at trial to show that the banks he 22 robbed were federally insured. See Doc. 2 at 8-9. Judge Aspey found that this argument 23 had been procedurally defaulted because it was not raised on appeal. Doc. 11. In his 24 objection, Petitioner stated that he “reincorporates” argument B and “totally relies on the 25 arguments and legal authority” stated in his petition. Doc. 16 at 2. This was not an 26 effective objection to Judge Aspey’s order because it did not address any defect in that 27 order. Indeed, it did not even address the reason for Judge Aspey’s rejection of argument 28 B – that it was barred by Petitioner’s failure to raise it on appeal. 1 An objection that is general or imprecise is not an effective objection to a report 2 and recommendation. Because Petitioner did not make specific objections to Judge 3 Aspey’s findings and recommendations on argument B as required by 28 U.S.C. 4 § 636(b)(1), his objection was ineffective. 5 requirement of Rule 72(b) that a district judge make a de novo determination of any 6 portion of the magistrate judge’s disposition to which “specific written objections” have 7 been made. Fed. R. Civ. P. 72(b)(2); see Sullivan v. Schriro, No. CV–0404–1517, 8 2006 WL 1516005 (D. Ariz. May 30, 2006). The Court had no obligation to review 9 Petitioner’s general objection to Judge Aspey’s recommendation. See Thomas v. Arn, 10 474 U.S. 140, 149 (1985) (no review at all is required for “any issue that is not the 11 subject of an objection.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 12 2003) (same). 13 14 15 16 This conclusion comports with the Moreover, Judge Aspey correctly concluded that argument B was procedurally defaulted. See Doc. 11. Because Petitioner’s incorrectly-filed Rule 60(b) motion would fail on its merits in any event, the Court will deny as moot his motion to deem it timely filed in this case. 17 IT IS ORDERED: 18 1. 19 20 21 Petitioner Devon Mitchell’s motion to deem Rule 60(b) motion as timely filed (Doc. 22) is denied. 2. Petitioner shall file no further motions in this action. Dated this 26th day of July, 2013. 22 23 24 25 26 27 28 -2-

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