Lee v. USA

Filing 31

ORDER rejecting 23 Report and Recommendation. FURTHER ORDERED that this matter is re-referred to Magistrate Judge James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a further report and recommendation. Signed by Senior Judge James A Teilborg on 3/27/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Duane Thomas Lee,
Movant-Defendant,

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ORDER

v.

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No. CV-16-08138-PCT-JAT
CR-05-594-PCT-JAT

USA,

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Respondent-Plaintiff.

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On December 14, 2018, the Magistrate Judge to whom this case was assigned

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issued a Report and Recommendation (R&R) recommending that this Court deny the

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Successive Motion to Vacate, Set Aside or Correct Sentence in this case. (Doc. 23).

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Specifically, the Magistrate Judge found that the collateral attack Movant is bringing in

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this case was waived by Movant’s plea agreement. (Id.).

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that

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the district judge must review the magistrate judge’s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). Movant filed objections to

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the R&R.

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After Movant filed his objections, the United States Supreme Court issued its

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decision in Class v. United States, 138 S.Ct. 798 (2018). Following that decision, this

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Court ordered the parties to file supplemental briefs. Both parties now appear to agree

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that the R&R’s conclusion that Movant waived his ability to bring his current

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constitutional challenge by his plea agreement was foreclosed by Class. (see e.g. Doc. 30

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at 3). Accordingly, the R&R will be rejected because of the intervening change in the

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law.

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In its supplement, the United States argues various alternative reasons why the

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Motion in this case should be denied. The Court will re-refer this case to the Magistrate

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Judge for the preparation of a new R&R; the United State may seek leave to brief those

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arguments, as necessary, upon re-referral.

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

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IT IS FURTHER ORDERED that this matter is re-referred to Magistrate Judge

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James F. Metcalf pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure

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for further proceedings and a further report and recommendation.

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Dated this 27th day of March, 2018.

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