Meeks v. McClintock

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION 25 . Petitioner's Motion to for Leave to File a Reply to Respondent's Response to Petitioner's Objections to the Report and Recommendation 29 is DENIED. The portions of Petitioner's Mot ion amounting to a substantive reply (Doc. 29 , Memorandum of Points and Authorities) are STRUCK from the record. Petitioner's Objections to Magistrate Judge Pyle's Report and Recommendation 25 ) are DENIED. Petitioner's Motion to Ad d New Legal Authority to Petitioner's §2241 Petition 33 is DENIED. Petitioner's Motion for a Telephonic Status Conference 34 is DENIED. Petitioners Motion to Add New Legal Authority Supporting that this Court has Jurisdiction Ove r Petitioners 28 U.S.C. §2241 Petition 35 is DENIED. Petitioners Petition under 28 U.S.C. §2241 1 and this case are DISMISSED. The Clerk of the Court must enter judgment accordingly and close this case. In the event Movant files an appeal, the Court declines to issue a certificate of appealability. Signed by Chief Judge Raner C Collins on 7/22/15. (See attached PDF for complete information.) (KAH)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Meeks,

No. CV-12-00335-TUC-RCC
Petitioner,

10
11

v.

12

ORDER

Susan McClintock,

13

Respondent.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Pending before the Court are Petitioner’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. §2241. (Docs. 1, 4 (supplement)), Respondent’s Answer (Doc. 10)
and Petitioner’s Traverse (Doc. 11). This matter was referred to Magistrate Judge Pyle,
who issued a Report and Recommendation (Doc. 25). Petitioner filed objections to Judge
Pyle’s R & R (Doc. 27) to which Respondent Responded (Doc. 28).

Thereafter,

Petitioner filed a Motion for Leave to file a Reply to Respondent’s Responses to
Petitioner’s Objections (Doc. 29).

Respondent filed a Response in Opposition to

Petitioner’s Motion for Leave to File a Reply to the Respondent’s responses to
Petitioner’s objections (Doc. 30), and Petitioner filed a Response to the same (Doc. 31).
In addition to the aforementioned objections and motions, Petitioner has since
filed a series of supplemental motions. Petitioner filed a Motion to Add New Legal
Authority to Petitioner’s §2241 Petition (Doc. 33), a Motion for a Telephonic Status
Conference (Doc. 34) and a Motion to Add New Legal Authority Supporting that this
Court has Jurisdiction Over Petitioner’s 28 U.S.C. §2241 Petition (Doc. 35).

1

Petitioner’s Motion to file a Reply to Respondent’s Responses to Petitioner’s

2

Objections (Doc. 29) is denied, and Petitioner’s objections to Magistrate Judge Pyle’s

3

Report and Recommendation (Doc. 27) are also denied. This Court accepts and adopts

4

Magistrate Judge Pyle’s August 28, 2014 Report and Recommendation (Doc. 25) as the

5

findings of fact and conclusions of law of this Court. Further, Petitioner’s supplemental

6

motions to add new legal authority and request for a telephonic status conference are

7

denied. (Docs. 33-35).

8

I.

Report and Recommendation

9

A.

Background

10

The factual and procedural background in this case is thoroughly detailed in

11

Magistrate Judge Pyle’s Report and Recommendation (Doc. 25).

12

incorporates by reference the “Factual and Procedural History” section of the Report and

13

Recommendation into this Order.

14

B.

This Court fully

Discussion

15

The duties of the District Court in connection with a Report and Recommendation

16

are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

17

636(b)(1).

18

disposition; receive further evidence; or return the matter to the magistrate judge with

19

instructions.” Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

The district court may “accept, reject, or modify the recommended

20

Where the parties object to a Report and Recommendation, “[a] judge of the

21

[District] court shall make a de novo determination of those portions of the [Report &

22

Recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v.

23

Arn, 474 U.S. 140, 149-50 (1985).

24

The Court will not disturb a magistrate judge’s order unless his factual findings

25

are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. §

26

636(b)(1)(A). “[T]he magistrate judge’s decision…is entitled to great deference by the

27

district court.” U.S. v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). A failure to

28

raise an objection waives all objections to the magistrate judge’s findings of fact. Turner

-2-

1

v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to object to a Magistrate Judge’s

2

conclusion “is a factor to be weighed in considering the propriety of finding waiver of an

3

issue on appeal.” Id. (internal citations omitted).

4

On September 12, 2014 Petitioner filed timely objections to Magistrate Pyle’s

5

Report and Recommendation (Doc. 27). Therein, Petitioner makes no objection to the

6

Factual and Procedural History section of the Report and Recommendation. See Doc. 27

7

at p. 1. Petitioner does object to the standard of review applied to his Petition, as well as

8

to the conclusions drawn by Judge Pyle regarding: the materiality of United States v.

9

Colvin, 353 F.3d 569 (7th Cir. 2003)(en banc); Petitioner’s “actual innocence” of 18

10

U.S.C. § 924(c); and jurisdiction. See Doc. 27 at pp. 2-8.

11

Petitioner’s objections raise issues and arguments that were considered and

12

appropriately addressed by Judge Pyle.

13

undermine Judge Pyle’s well-reasoned conclusion that Petition failed to demonstrate he is

14

“actually innocent” of violating 18 U.S.C. §924(c) in light of his two, separate, 18 U.S.C.

15

§1951 robbery convictions. See Doc. 25 at pp. 11-13.

Moreover, Petitioner’s objections do not

16

After Respondent filed its Response to Petitioner’s Objections to Magistrate

17

Pyle’s Report and Recommendation (Doc. 28), Petitioner filed a Motion for Leave to

18

Reply to Respondent’s Response [to Petitioner’s Objections to the R&R] (Doc. 29).

19

Petitioner’s Motion contained both the prayer for relief and the substantive, unsolicited

20

reply. This Court did not grant leave for Petitioner to file a reply pursuant to Fed. R. Civ.

21

P. 72(b)(2). Leave is not warranted in this matter as Petitioner cannot overcome Judge

22

Pyle’s thoroughly and correctly analyzed conclusion that Petitioner failed to demonstrate

23

he is “actually innocent” of violating 18 U.S.C. §924(c). See Doc. 25 at p. 13.

24

This Court has made a de novo review of those portions of the Report &

25

Recommendation to which Petitioner’s objections were made. This Court considers the

26

Report and Recommendation to be comprehensive and well-reasoned.

27

II.

28

Supplemental Motions (Docs. 33-35)
Petitioner seeks to supplement his Petition to add citations to case law that he

-3-

1

contends supports the conclusions that this Court has jurisdiction to hear his claim and

2

that violation of 18 U.S.C. § 241 is not a crime of violence and, therefore, cannot qualify

3

as a predicate offense for his §924(c) convictions. See Docs. 33, 35. The cases cited by

4

Petitioner are repetitive of cases he has already cited in his Supplement (Doc. 4) to his

5

Petition, in his Traverse (Doc. 11), and in his Objections to Magistrate Judge Pyle’s

6

Report and Recommendation (Doc. 27). Moreover, the additional authority does not

7

address, alter, or undermine the fact that, even if §241 could not constitute the predicate

8

offense for Petitioner’s successive §924(c) convictions, his convictions under §1951 can,

9

thereby rendering this Court without jurisdiction to consider Petitioner’s Petition. See,

10

Doc. 27 at 11-14. Accordingly, Petitioner’s requests to supplement the record (Docs. 33,

11

35) are denied.

12

Petitioner’s request for a telephonic status conference reiterates his objections to

13

Magistrate Judge Pyle’s Report and Recommendation. See Doc. 34 and Doc. 27. Such a

14

status conference is unnecessary as this Order disposes of need for further discussion of

15

the status of this matter.

16

Accordingly, IT IS HEREBY ORDERED as follows:

17

1. Petitioner’s Motion to for Leave to File a Reply to Respondent’s Response to

18

Petitioner’s Objections to the Report and Recommendation (Doc. 29) is DENIED.

19

Accordingly, the portions of Petitioner’s Motion amounting to a substantive reply (Doc.

20

29, Memorandum of Points and Authorities) are STRUCK from the record.

21
22

2. Petitioner’s Objections to Magistrate Judge Pyle’s Report and Recommendation
(Doc. 25) are DENIED.

23

3. The Court ACCEPTS and ADOPTS Magistrate Judge Pyle’s August 28, 2014

24

Report and Recommendation (Doc. 25) as the findings of fact and conclusions of law of

25

this Court.

26
27
28

4. Petitioner’s Motion to Add New Legal Authority to Petitioner’s §2241 Petition
(Doc. 33) is DENIED.
5. Petitioner’s Motion for a Telephonic Status Conference (Doc. 34) is DENIED.

-4-

1
2
3
4

6. Petitioner’s Motion to Add New Legal Authority Supporting that this Court has
Jurisdiction Over Petitioner’s 28 U.S.C. §2241 Petition (Doc. 35) is DENIED.
7. Petitioner’s Petitioner under 28 U.S.C. §2241 (Doc. 1) and this case are
DISMISSED.

5

8. The Clerk of the Court must enter judgment accordingly and close this case.

6

9. Although Petitioner has brought his claims in a § 2241 petition, a certificate of

7

appealability is required where a § 2241 petition attacks the petitioner’s conviction or

8

sentence. See Porter v. Adams, 244 F.3d 1006 (9th. 2001). Pursuant to Rule 11(a) of the

9

Rules Governing Section 2255 Cases, in the event Movant files an appeal, the Court

10

declines to issue a certificate of appealability because reasonable jurists would not find

11

the Court’s procedural ruling debatable.

12

484 (2000).

13

See Slack v. McDaniel, 529 U.S. 473,

Dated this 22nd day of July, 2015.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-