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)

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NOT FOR PUBLICATION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-