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