Garraway v. Tracy

Filing 27

ORDER: Magistrate Judge Fine's Amended Report and Recommendation (Doc. 21 ) is accepted and adopted by the Court; the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Docs. 1 , 2 ) is denied and this action is dismissed w ith prejudice; a certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right; and the Clerk of Court shall terminate this action. Signed by Judge Steven P Logan on 6/28/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mitchell Theophilus Garraway,

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Petitioner,
vs.

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K. Tracey, Warden,
Respondent.

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No. CV-15-02163-PHX-SPL
ORDER

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Mitchell Theophilus Garraway, at the time of the Petition, was incarcerated in FCI

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Phoenix, Arizona. The Petitioner was convicted of murder by a General Court-Martial

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while serving in the United States military. He filed a pro se Petition for Writ of Habeas

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Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241 (Docs. 1, 2).

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Respondent filed an Answer (Doc. 16), and Petitioner filed a reply (Doc. 17). United

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States Magistrate Judge Deborah M. Fine has issued an Amended Report and

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Recommendation (“R&R”) recommending that the Court dismiss the petition (Doc. 21).

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The Petitioner timely filed Objections to the R&R (Doc. 23), and the Respondent filed a

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Response in Opposition to the Petitioner’s Objections to the R&R (Doc. 24). Petitioner

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does not object to the correctness of the factual background in the R&R, which the Court

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adopts and incorporates. For the following reasons, the Court accepts and adopts the

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R&R, and denies the petition.

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A district judge “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files

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a timely objection to an R&R, the district judge reviews de novo those portions of the

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R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection

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requires specific written objections to the findings and recommendations in the R&R. See

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. §

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636(b)(1). It follows that the Court need not conduct any review of portions to which no

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specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v.

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Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is

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judicial economy). Further, a party is not entitled as of right to de novo review of

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evidence or arguments which are raised for the first time in an objection to the R&R, and

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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

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615, 621-622 (9th Cir. 2000).

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Petitioner objected to the R&R arguing Judge Fine failed to properly distinguish

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the facial differences between the Naval Clemency and Parole Board and the United

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States Parole Commission’s regulations. He further objected that Judge Fine improperly

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added an additional element to the ex post facto clause and failed to consider the way his

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punishment was increased by the United States Parole Commission (Doc. 23).

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The Court has undertaken an extensive review of the issues presented in the

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Objections. Petitioner has not shown that he is entitled to habeas relief pursuant to 28

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U.S.C. § 2241. Having carefully reviewed the record as a whole, and finding none of

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Petitioner’s objections have merit, the R&R will be adopted in full. Accordingly,

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IT IS ORDERED:

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1.

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That Magistrate Judge Fine’s Amended Report and Recommendation (Doc.

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That the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241

(Docs. 1, 2) is denied and this action is dismissed with prejudice;
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That a certificate of appealability and leave to proceed in forma pauperis on

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

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a constitutional right; and
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That the Clerk of Court shall terminate this action.

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Dated this 28th day of June, 2017.

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Honorable Steven P. Logan
United States District Judge

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