Bonelli v. USA

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS ORDERED that Magistrate Judge Bade's 33 R&R is accepted and adopted. IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. [16 0] in CR-13-01551-PHX-DJH) is denied and dismissed with prejudice. IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied. IT IS FINALLY ORDERED that the Clerk of Court shall terminate the civil action (CV-17-00618-PHX-DJH) and enter judgment accordingly. Signed by Judge Diane J Humetewa on 11/4/19. (MSA)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Isaac Bonelli,

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Movant/Defendant,

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v.

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Respondent/Plaintiff.

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ORDER

United States of America,

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No. CV-17-00618-PHX-DJH
No. CR-13-01551-PHX-DJH

Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence by a person in
Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. 1) (the “Motion”) to which
Respondent the United States, filed a Response (Doc. 15), and Defendant filed a Reply.
(Doc. 28). Subsequently, United States Magistrate Judge Bridget S. Bade1 issued a Report

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and Recommendation (“R&R”) (Doc 33). Following a detailed and thorough analysis,

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Judge Bade recommended that Defendant’s Motion be denied. (Id. at 15). Defendant filed

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timely objections to the R&R (Doc. 34) to which Respondents filed a timely Reply (Doc.
37). The Court now issues its ruling.
I.

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The R&R
In her R&R, Judge Bade, set forth a detailed factual and procedural background of

Petitioner’s case. (See Doc. 33 at 1-2). Only those portions needed to address Defendant’s
objections are repeated here because the Court need not review that portion of the R&R to
which no objections are made. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (the relevant
provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face

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Judge Bade is now a Ninth Circuit Appellate Judge.

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require any review at all . . . of any issue that is not the subject of an objection.”). Moreover,

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a district court need not consider claims raised for the first time in a party’s objection to a

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magistrate judge’s recommendation. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002).

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The following facts are pertinent to Defendant’s objections:

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A jury convicted Defendant of theft from a federal firearm licensee as alleged in

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Count Three of the indictment. (See United States v. Bonelli, CR-13-01551-PHX-DJH at

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Doc. 110).2 Count Two of that same indictment, which was severed for purposes of trial,

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alleged that Defendant was a prohibited possessor having “been adjudicated as a mental

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defective and who has been committed to a mental institution” in violation of 18 U.S.C.

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§§ 922(g)(4) and 924(a)(2). (See CR Doc. 8). Rather than proceed to trial on Count Two,

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the Defendant opted to plead guilty to that charge, without a written plea agreement or a

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waiver of appeal rights.3

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During the plea hearing, Defendant was placed under oath, informed of his

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constitutional rights, waived those rights, and agreed to plead guilty to being a prohibited

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possessor in possession of a firearm as charged in Count Two. (CR Doc. 155 at 39). Before

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placing the 922(g)(4) elements on the record, Government’s counsel stated “the

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government may opt to proceed under one theory or another. And the element that the

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government is going under is that the defendant had been previously committed to a mental

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institution.” (Id. at 48). The Government then proceeded to set forth the elements and the

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factual basis for the charge. (Id.). The Court inquired of Defendant, “Do you agree with

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those facts?” He responded “Yes, your Honor.” (Id. at 49). The Court then had the

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following exchange with the Defendant:

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Court: Now, . . . I need you to tell me what you did that caused you to be
charged with this crime and to satisfy the Court that you are voluntarily
pleading guilty to it.”

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Citations to the docket in Defendant’s criminal case will hereafter be prefaced with “CR”.

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Defendant asked that he be permitted to enter a nolo contendre plea, which the
Government objected to. The Court overruled that request finding no compelling reason
pursuant to Fed. R. Crim. P. 11(a)(3). (See CR Doc. 155 at 26-30).
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Defendant: “On or about October 8th, 2013, I knowingly possessed two
rifles in the District of Arizona.

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Court: Do you agree, Mr. Bonelli, that at least one of those rifles was
manufactured out of Arizona?

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Defendant: “Yes, Your Honor.

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Court: And do you also agree that the government could prove that you had
been previously committed to a mental institution and that you are still under
the jurisdiction of the Arizona Psychiatric Review Board, which will expire
in 2017?”

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Defendant: Yes Your Honor. At the time I was under the jurisdiction of the
Psychiatric Security Review Board with jurisdiction expiring on December
13th, 2017.”

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(Id. at 49). The Court found Defendant’s guilty plea was knowingly and voluntarily

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entered and was supported by a sufficient factual basis. (Id. at 51).

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As the R&R notes, the Defendant had been previously committed to a mental

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institution and on July 9, 2013, the Psychiatric Security Review Board [“PSRB”] issued an

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order of his release pursuant to A.R.S. § 13-3994(F)(2). (Doc. 33 at 5). The conditional

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release stated that it “continue[d] to have jurisdiction over [Defendant] until December 13,

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2017, pursuant to [Ariz. Rev. Stat.] 13-3994(D).” (Id.) (citing Doc. 28, Ex. A). Within

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three months of signing Defendant’s order of release, a member of the PSRB sought a

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warrant to return Defendant to the mental health institution after he committed new crimes.

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(Id. at 6).

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II.

Petitioner’s Objections

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A.

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This Court must “make a de novo determination of those portions of the report or

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Standard of Review

specified proposed findings or recommendations to which” Petitioner is objecting. 28
U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly objected to.”);
U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same). Further, this Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
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magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

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B.

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Liberally construing Defendant’s Motion, Judge Bade appropriately found that it

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asserted three grounds for relief: first, that Defendant’s trial counsel was ineffective for

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advising him to plead guilty to Count Two; second, that Defendant’s guilty plea to Count

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Two was involuntary, unintelligent, and unknowingly; and third, that trial counsel was

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ineffective for failing to interview two witnesses before trial. (Doc. 33 at 2). As noted,

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Defendant timely filed an Objection to the R&R (Doc. 34), to which the Government has

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responded (Doc. 37). The Court will address each finding and objection in turn.

Analysis

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Ground One Finding and Defendant’s Objection

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Judge Bade liberally interpreted Defendant’s ground one claim as asserting that his

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PSRB release was authorized pursuant to a state relief-from-disabilities program, and

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therefore Defendant was permitted to possess firearms. (See Doc. 33 at 7-8). Stated

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differently, Defendant claims that the PSRB restored his rights, so he was no longer a

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prohibited possessor in October 2013, when the indicted crimes occurred. Thus,

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Defendant’s Motion includes an ineffective assistance of counsel and an actual innocence

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claim. The R&R explains in detail the federal and Arizona state statutory schemes that
restore an individual’s firearm possession rights and concludes that Defendant did not
pursue a restoration of rights under these schemes. Thus, Judge Bade concluded that
Defendant’s argument that the PSRB satisfied this process was flawed. (Id. at 7-10). The
Court agrees.
The R&R carefully outlines the NICS Improvement Amendments Act of 2007
(“NIAA”) which provides grants to states to “provide citizens an opportunity to petition to
have their rights reinstated” and when done “the citizens who petition and are granted relief
are given full recognition under federal law.” (See id. at 8-9). The R&R explained that
Arizona law establishes a procedure where “a person may petition the court that entered an
order, finding or adjudication that resulted in the person being a prohibited possessor . . .
subject to 18 U.S.C.§ 922(d)(4) or (g)(2) to restore the person’s right to possess a firearm.”
A.R.S. § 13-925(A). If the court grants the petition “the original order, finding or
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adjudication is deemed not to have occurred for purposes of applying . . . 18

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U.S.C. § 922(d)(2) or (g)(4) to that person.” Id. Then, the state will remove the individual’s

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name from the NCIS database and inform the U.S. Attorney General that he or she is no

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longer a prohibited possessor. (Id. at 9-10). Judge Bade found, and the Defendant does

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not dispute, that he did not pursue a restoration of rights under Arizona’s statutory scheme.

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Defendant asserts vague objections that Judge Bade’s legal analysis was wrong and

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claims, for the first time in his Objection, that he did not qualify as a prohibited possessor

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in the first instance. (Doc. 34 at 5). There, Defendant states that at the time he was found

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“GEI” (guilty except insane), the state statute that defined “prohibited possessor” did not

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include individuals who were deemed GEI. (Id.) (“It was not until after 2013, that the

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Arizona Legislature amended A.R.S. [§]13-3101, which is the chapter that defines a

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“prohibited possessor,” to include a provision for a GEI sentencee [sic]”). See A.R.S. § 13-

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3101(A)(7)(g).

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time in a party’s objection to a magistrate judge’s recommendation. Brown, 279 F.3d at

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744.

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Defendant’s objection because he knowingly and voluntarily admitted that he had

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As noted above, the Court need not consider claims raised for the first

Nonetheless, the Court has considered this new argument and overrules the

previously been committed to a mental institution and he was under the jurisdiction of the
PSRB until December 2017. His admissions establish his status as a prohibited possessor
as alleged in Count Two.
Moreover, A.R.S. § 13-3101(A)(7)(a) includes a cross-reference incorporating
individuals who have been court-ordered to “inpatient treatment in a mental health
treatment agency” as prohibited possessors, a reference that Defendant altogether
overlooks. See A.R.S. § 36-540. Finally, there is nothing in the record to show that
Defendant’s right to possess a firearm was restored pursuant to A.R.S. § 13-3101(A)(7).
The Court thus adopts the R&R with regard to ground one.
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Ground Two Finding and Defendant’s Objection4

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Judge Bade also found that Defendant could not establish that his guilty plea was

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involuntary because it was based on his counsel’s misinformation. (Doc. 33 at 12). The

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R&R outlined facts and analysis that show that Defendant’s guilty plea was knowingly,

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intelligently, and voluntary entered. The Court agrees with that analysis.

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As an initial matter, this Court has construed Defendant’s objections to the R&R on

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ground two liberally, and finds them to be generalized and a reiteration of the grounds

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previously stated in his Motion. For example, as his did in his Motion, Defendant’s

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Objection again argues that “the witnesses made an identity based on the name on a receipt”

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and through the “use of a picture of Defendant, taken a month before[,] used by a Maricopa

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County Sheriff’s office detective in photo line-ups” and not on the visual identification of

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a suspect. The Court has no obligation to review these objections. See Martin v. Ryan,

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2014 WL 5432133, at *2 (D. Ariz. 2014) (citing Warling v. Ryan, 2013 WL 5276367, at

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*2 (D. Ariz. 2013) (“[A] general objection ‘has the same effect as would a failure to

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object.’”). The Court has nonetheless reviewed the record and the R&R and agrees with

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Judge Bade’s sound factual analysis and ruling that Defendant has not shown that but for

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counsel’s performance, there is a reasonable likelihood that the results of the jury verdict
would have been different. As discussed above, at the time of the acts alleged in Count
Two, Defendant was a prohibited possessor without restoration of his rights to possess a
firearm. Thus, his counsel did not misapprehend the law as applied to him.
The Defendant’s second objection is thus, denied.

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3.

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As for his claim that trial counsel was ineffective for failing to interview two

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Ground Three Finding and Defendant’s Objections

witnesses before trial, Defendant objects to the R&R by reasserting the arguments made in
his Motion and stating that he is entitled to an evidentiary hearing. As to the latter, the
Court notes that Defendant’s Motion did not seek an evidentiary hearing. (See Doc. 1 at

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Although Defendant objects to a finding that his ground two argument was procedurally
defaulted, the R&R makes no such finding, and only references the Government’s position
that they believe it is. Thus, the Court need not address this objection. (Doc. 33 at n.4).
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¶ 14). Regardless, a prisoner is entitled to an evidentiary hearing “[u]nless the motion and

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the files and records of the case conclusively show that the prisoner is entitled to no

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relief.” 28 U.S.C. § 2255(b); see also United States v. Schaflander, 743 F.2d 714, 717 (9th

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Cir. 1984) (per curiam). The Court declines to provide Defendant with an evidentiary

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hearing because, as the R&R explains, “Defendant has not shown that he was prejudiced

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by trial counsel’s alleged deficient performance,” that is, her failure to interview two

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identification witnesses before trial. (Doc. 33 at 12). Indeed, Defendant seeks a hearing

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to have the Court “take into consideration any facts which may tend to prove” his counsel’s

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ineffectiveness. (Doc. at 13 ) (emphasis added). The law under Strickland requires more.

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See Strickland v. Washington, 466 U.S. 668, 687-88, 697 (1984) (a petitioner must

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demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the

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result of the proceeding would have been different.”). Judge Bade thoroughly reviewed

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the factual record in arriving at her conclusions that the evidence at trial, beyond the

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testimony of the two referenced witnesses, supported the Defendant’s identity as the

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individual who stole firearms from the Walmart. Importantly, the Defendant has not shown

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that but for his counsel’s failure to interview those witnesses prior to trial, the trial outcome

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would have been different. Thus, Defendant’s request for an evidentiary hearing is denied
and his objection as to ground three is overruled.
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Based on the foregoing,

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IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 33) is accepted and

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adopted.
IT IS FURTHER ORDERED that the Motion to Vacate, Set Aside or Correct

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Conclusion

Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is denied and dismissed with prejudice.
IT IS FURTHER ORDERED that a Certificate of Appealability and leave to
proceed in forma pauperis on appeal be denied.
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IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and
enter judgment accordingly.
Dated this 4th day of November, 2019.

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Honorable Diane J. Humetewa
United States District Judge

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