Hatch v. USA

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION in whole 22 Report and Recommendation. Denying and dismissing the Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1 ) and Doc. 76 in the related matter 02-CR-1016-PHX-JJT. Denying a Certificate of Appealability and leave to proceed in forma pauperis upon a finding that Mr. Hatch has not made a substantial showing of the denial of a Constitutional right. Signed by Judge John J Tuchi on 11/6/17. (DXD)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eddie Lee Hatch, Petitioner, 10 11 v. 12 CR 02-01016-PHX-JJT United States of America, 13 No. CV-16-02041-PHX-JJT (MHB) Respondent. ORDER 14 At issue is the Report and Recommendation (Doc. 22) (“R&R”) entered in matter 15 16-CV-2041 by Magistrate Judge Michelle H. Burns recommending that Mr. Hatch’s 16 2255 Motion be denied and dismissed with prejudice in both matters 16-CV-2041 and 17 02-CR-1016. The time for Mr. Hatch to file objections to the R&R elapsed early 18 September 2017. No objections were filed by that deadline or thereafter. The Court thus 19 may accept the R&R without further review. See United States v. Reyna-Tapia, 328 F.3d 20 1114, 1121 (9th Cir. 2003). 21 Even if the Court conducted a review into the merits of the R&R, it would, and it 22 does, adopt the R&R in its entirety in this case. Judge Burns correctly concluded that 23 pursuant to the Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 886, 892 24 (2017), the residual clause in the advisory guidelines is not subject to a void-for- 25 vagueness challenge under the Fifth Amendment Due Process Clause. Thus, Mr. Hatch’s 26 Petition, filed pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), must be 27 dismissed with prejudice. 28 1 2 IT IS ORDERED adopting in whole the R&R (Doc. 22) prepared by Judge Burns in this matter. 3 IT IS FURTHER ORDERED denying and dismissing the Motion to Vacate, Set 4 Aside or Correct Sentence under 28 U.S.C. § 2255 found at Doc. 1 in this matter, 16-CV- 5 2041, and at Doc. 76 in the related matter 02-CR-1016-PHX-JJT. 6 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 7 proceed in forma pauperis upon a finding that Mr. Hatch has not made a substantial 8 showing of the denial of a Constitutional right. 9 Dated this 6th day of November, 2017. 10 11 12 Honorable John J. Tuchi United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -2-

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