Sterling v. USA

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS THEREFORE ORDERED that the Report and Recommendation of Magistrate Judge Deborah M. Fine (Doc. 30 ) to grant Respondents' Motion to Dismiss § 2255 Motion (Doc. 21 ) is ACCEPTED. IT IS FUR THER ORDERED that Movant's First Amended § 2255 Motion (Doc. 17 ) is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and terminate this action. (See document for complete details). Signed by Judge Douglas L Rayes on 10/12/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David Jay Sterling,
Movant/Defendant,

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v.

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No. CV-16-4602-PHX-DLR (DMF)
CR-86-0063-PHX-PGR

United States of America,

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ORDER

Respondent/Plaintiff.

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Before the Court are Movant David Jay Sterling’s First Amended Motion to

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Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. 17), Respondent’s

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Motion to Dismiss § 2255 Motion (Doc. 21), United States Magistrate Judge Deborah M.

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Fine’s Report and Recommendation (“R&R”) (Doc. 30), and Petitioner’s Objections to

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the Magistrate Judge’s R&R (Doc. 34).

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The Court has considered Movant’s objections and reviewed the R&R de novo.

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See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the Court must make a de

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novo determination of those portions of the Report and Recommendation to which

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specific objections are made). The R&R, relying in part on United States v. Watson, 881

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F.3d 782 (9th Cir. 2018), found that bank robbery is categorically a crime of violence

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under the “elements clause” of 18 U.S.C. § 924(c)(3) because it requires at least an

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implicit threat to use the type of physical force necessary to meet the Johnson v. United

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States, 135 S.Ct. 2251 (2015), standard. The Movant argues that because, as of the date

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of his objection, August 13, 2018, there was a pending petition for certiorari in the

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Watson matter he should be granted a certificate of appealability. However, the Court

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notes that the petition for certiorari was denied by the Supreme Court on October 1, 2018.

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The Court accepts the magistrate judge’s recommendation to dismiss the petition

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within the meaning of Rule 72(b), Fed. R. Civ. P., and overrules Movant’s Objections to

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Magistrate Judge’s R&R. See 28 U.S.C. § 636(b)(1) (stating that the district court “may

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accept, reject, or modify, in whole or in part, the findings or recommendations made by

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the magistrate”).

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IT IS THEREFORE ORDERED that the Report and Recommendation of

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Magistrate Judge Deborah M. Fine (Doc. 30) to grant Respondents’ Motion to Dismiss

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§ 2255 Motion (Doc. 21) is ACCEPTED.
IT IS FURTHER ORDERED that Movant’s First Amended § 2255 Motion
(Doc. 17) is DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment

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accordingly and terminate this action.
Dated this 12th day of October, 2018.

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Douglas L. Rayes
United States District Judge

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