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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Latoya Nivea Morehead,
Movant/Defendant,

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ORDER

v.

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CV-18-00055-PHX-JAT (JZB)
CR-12-01577-PHX-JAT

USA,

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Respondent/Plaintiff.

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Pending before the Court is the Report and Recommendation (“R&R) from the

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Magistrate Judge recommending that the Motion to Vacate, Set Aside, or Correct Sentence

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filed pursuant to 28 U.S.C. § 2255 be denied (“Motion”). (Doc. 23). This Court “may

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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).

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The R&R advised the parties that they had 14 days to file objections. (Doc. 23 at
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Because neither party file objections, the Court hereby accepts the R&R except for

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the recommendation on whether to grant a certificate of appealability, which will be

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discussed below. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts

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are not required to conduct “any review at all . . . of any issue that is not the subject of an

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objection” (emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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2003) (en banc) (“statute makes it clear that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not otherwise”

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(emphasis in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz.

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2003).

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After the R&R was issued, Movant filed two documents. One is motion for a

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certificate of appealability and leave to proceed in forma pauperis on appeal. (Doc. 24).

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This document makes substantive arguments regarding why Movant believes she should

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be allowed to pursue an appeal. The second document is a motion for leave to appeal in

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forma pauperis. (Doc. 25). This document outlines Movant’s financial resources.

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Although Movant did not caption her motion for certificate of appealability as an

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objection to the R&R, the Court will nonetheless review that recommendation de novo. See

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Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th

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Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge=s]

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recommendations to which the parties object.”). Movant argues that she should be granted

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a certificate of appealability because the R&R made recommendations without conducting

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an evidentiary hearing or permitting discovery. (Doc. 24 at 1).

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Regarding the discovery issue, the undersigned ruled on that request (Doc. 4 at 2-3)

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prior to the case being referred to the Magistrate Judge. This Court denied the request for

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discovery without prejudice to re-urging the request after Respondent was served. (Id.).

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Movant does not cite, and this Court has not located, any point in the record where she

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renewed the request. Accordingly, this discovery request is not a basis to grant a certificate

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of appealability because Movant did not timely re-urge the issue.

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The Court has reviewed the request for an evidentiary hearing de novo. (See Doc.

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23 at 20). Movant seeks an evidentiary hearing on her claim that her counsel was

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ineffective. This Court agrees with the R&R that the record conclusively establishes that

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Movant’s counsel did not provide ineffective assistance and, therefore, no evidentiary

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hearing is necessary to decide the Motion. Because both of Movant’s arguments regarding

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why she should receive a certificate of appealability fail, the Court will accept the

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recommendation of the R&R that this Court deny a certificate of appealability.

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Therefore,

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IT IS ORDERED that the Report and Recommendation (Doc. 23) is accepted and

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adopted; the Motion is denied, with prejudice, and the Clerk of the Court shall enter

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judgment accordingly.

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IT IS FURTHER ORDERED that the motions for a certificate of appealability

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and leave to proceed in forma pauperis on appeal (Docs. 24 and 25) are denied. This Court

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denies issuance of a certificate of appealability and leave to appeal in forma pauperis.

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Dated this 11th day of January, 2019.

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