Morehead v. USA

Filing 26

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMNDATION - The Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255 (Doc. 209 in CR-12-01577-PHX-JAT) is denied and the civil action opened in connection with thi s Motion (CV-18-00055- PHX-JAT) is dismissed with prejudice. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that the 24 motion for a certificate of appealability and 25 Motion for leave to proceed in forma pauperis on appeal are denied. This Court denies issuance of a certificate of appealability and leave to appeal in forma pauperis. See document for complete details. Signed by Senior Judge James A Teilborg on 1/11/19. (MSA)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Latoya Nivea Morehead, Movant/Defendant, 10 11 ORDER v. 12 CV-18-00055-PHX-JAT (JZB) CR-12-01577-PHX-JAT USA, 13 Respondent/Plaintiff. 14 15 Pending before the Court is the Report and Recommendation (“R&R) from the 16 Magistrate Judge recommending that the Motion to Vacate, Set Aside, or Correct Sentence 17 filed pursuant to 28 U.S.C. § 2255 be denied (“Motion”). (Doc. 23). This Court “may 18 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 19 magistrate judge.” 28 U.S.C. § 636(b)(1). 20 21 The R&R advised the parties that they had 14 days to file objections. (Doc. 23 at 20-21). Neither party filed objections. 22 Because neither party file objections, the Court hereby accepts the R&R except for 23 the recommendation on whether to grant a certificate of appealability, which will be 24 discussed below. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts 25 are not required to conduct “any review at all . . . of any issue that is not the subject of an 26 objection” (emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 27 2003) (en banc) (“statute makes it clear that the district judge must review the magistrate 28 judge’s findings and recommendations de novo if objection is made, but not otherwise” 1 (emphasis in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2 2003). 3 After the R&R was issued, Movant filed two documents. One is motion for a 4 certificate of appealability and leave to proceed in forma pauperis on appeal. (Doc. 24). 5 This document makes substantive arguments regarding why Movant believes she should 6 be allowed to pursue an appeal. The second document is a motion for leave to appeal in 7 forma pauperis. (Doc. 25). This document outlines Movant’s financial resources. 8 Although Movant did not caption her motion for certificate of appealability as an 9 objection to the R&R, the Court will nonetheless review that recommendation de novo. See 10 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 11 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge=s] 12 recommendations to which the parties object.”). Movant argues that she should be granted 13 a certificate of appealability because the R&R made recommendations without conducting 14 an evidentiary hearing or permitting discovery. (Doc. 24 at 1). 15 Regarding the discovery issue, the undersigned ruled on that request (Doc. 4 at 2-3) 16 prior to the case being referred to the Magistrate Judge. This Court denied the request for 17 discovery without prejudice to re-urging the request after Respondent was served. (Id.). 18 Movant does not cite, and this Court has not located, any point in the record where she 19 renewed the request. Accordingly, this discovery request is not a basis to grant a certificate 20 of appealability because Movant did not timely re-urge the issue. 21 The Court has reviewed the request for an evidentiary hearing de novo. (See Doc. 22 23 at 20). Movant seeks an evidentiary hearing on her claim that her counsel was 23 ineffective. This Court agrees with the R&R that the record conclusively establishes that 24 Movant’s counsel did not provide ineffective assistance and, therefore, no evidentiary 25 hearing is necessary to decide the Motion. Because both of Movant’s arguments regarding 26 why she should receive a certificate of appealability fail, the Court will accept the 27 recommendation of the R&R that this Court deny a certificate of appealability. 28 Therefore, -2- 1 IT IS ORDERED that the Report and Recommendation (Doc. 23) is accepted and 2 adopted; the Motion is denied, with prejudice, and the Clerk of the Court shall enter 3 judgment accordingly. 4 IT IS FURTHER ORDERED that the motions for a certificate of appealability 5 and leave to proceed in forma pauperis on appeal (Docs. 24 and 25) are denied. This Court 6 denies issuance of a certificate of appealability and leave to appeal in forma pauperis. 7 Dated this 11th day of January, 2019. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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