Agustin-Simon v. USA

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Eileen Willet's R&R (Doc. 15 ) is accepted. The motion to vacate sentence (Doc. 1 ) is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied. The Clerk shall terminate this action. See document for further details. Signed by Senior Judge David G Campbell on 3/6/2019. (RMV)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Domingo Agustin Simon,
Petitioner,

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ORDER

v.

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No. CV16-2715 PHX DGC

United States,

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Respondent.

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Pending before the Court is Movant’s 28 U.S.C. § 2255 motion to vacate, set aside,

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or correct his sentence, filed on August 10, 2016 (Doc. 1), and Magistrate Judge Eileen

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Willett’s Report and Recommendation (“October 5 R&R”), recommending that the Court

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deny the motion. Doc. 18. The Court previously accepted the October 5 R&R on

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November 7, 2017, after Movant failed to file an objection. Doc. 19. Movant then filed a

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motion to vacate the Court’s November 7 judgment, stating that he never received a copy

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of the October 5 R&R. Doc. 21 at 4. Movant also requested leave to amend his § 2255

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motion. Doc. 21. The Magistrate issued a second R&R (“July 20 R&R”) recommending

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that both motions be denied. Doc. 32.

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On August 20, 2018 Movant filed an objection to the July 20 R&R, asserting that

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he did not receive a copy of Judge Willet’s October 5 R&R. Doc. 21 at 2,4. On November

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28, 2018, the Court vacated its November 7 order and instructed the Clerk of Court to

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resend Movant a copy of the October 5 R&R. Doc.41 at 3-4. Per the Court’s order, Movant

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could file an objection that only addressed the October 5 R&R’s findings and conclusions.

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Id. at 4. The Court denied Movant’s request to amend his § 2255 motion as untimely. Id.

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The Court sent the documents to Movant’s new address, as identified in notices

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provided by the Government and Movant. See Docs. 42, 45, 46. Movant was directed to

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file his objection by February 28, 2019. Movant has failed to file an objection, which

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relieves the Court of its obligation to review the R&R. See 28 U.S.C. § 636(b)(1); Fed. R.

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Civ. P. 72(b)(3); Thomas v. Arn, 474 U.S. 149 (1985). The Court will therefore accept the

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October 5 R&R and deny the motion.

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IT IS ORDERED:

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1.

Magistrate Judge Eileen Willet’s October 5 R&R (Doc. 15) is accepted.

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2.

The motion to vacate sentence (Doc. 1) is denied.

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3.

A certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied.

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4.

The Clerk shall terminate this action.

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Dated this 6th day of March, 2019.

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