Davidson v. McClintock

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATION. IT IS HEREBY ORDERED that the Report and Recommendation 30 is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court; IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 1 is DENIED and this action is hereby DISMISSED; that all pending matters are denied as moot; that any request for certificate of appealability shall be denied in accordance with these findings; FURTHER ORDERED that the Clerk of Court is directed to enter judgment accordingly.Signed by Senior Judge Frank R Zapata on 3/30/2015. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew C. Davidson,,
Petitioner,

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vs.

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Susan J. McClintock,

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Respondent.

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No. CV 13-004-TUC-FRZ (DTF)
ORDER

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Before the Court for consideration is a Petition for Writ of Habeas Corpus brought

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pursuant to 28 U.S.C. § 2241, pro se, by Petitioner Matthew C. Davidson, currently confined

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at the Federal Correctional Institution in Safford, Arizona, and the Report and

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Recommendation of the Magistrate Judge recommending dismissal.

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This matter was referred to Magistrate Judge D. Thomas Ferraro, pursuant to the

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provisions of 28 U.S.C. § 636(b), Rule 72, Fed.R.Civ.P., and Local Rules 72.1 and 72.2 of

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the Rules of Practice of the United States District Court for the District of Arizona, for

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further proceedings and Report and Recommendation.

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Magistrate Judge Ferraro issued his Report and Recommendation, recommending that

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the Court dismiss the Petition for Writ of Habeas Corpus and deny a certificate of

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appealability.

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Because Petitioner is contesting the legality of his sentence, his claim falls within the

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parameters of 28 U.C.S. § 2255, as set forth in the detailed factual and legal analysis by

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Magistrate Judge Ferraro.

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Petitioner was convicted on November 3, 2004, of being a felon in possession of a

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firearm – armed career criminal, conspiracy to obstruct justice, and obstruction of justice.

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The jury found that he had six prior convictions for violent felonies. The sentencing judge

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found Petitioner was an armed career criminal and sentenced him to 235 months

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imprisonment.

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The Report and Recommendation issued by Magistrate Judge Ferraro sets forth the

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factual and procedural history of Petitioner’s federal and underlying state proceedings and

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convictions at issue and provides a thorough analysis of the claims and legal standards at

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issue.

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Magistrate Judge Ferraro found that Petitioner has failed to demonstrate that he

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qualifies for the § 2255 safety valve; and that under current law, Petitioner has four prior

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predicate crimes for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. §

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924(e)(1). Judge Ferraro further found that Petitioner has not established factual innocence

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as to any of the predicates. Moreover, the legal basis for Petitioner’s claim was available

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prior to his original 28 U.S.C. § 2255 motion, and thus, the Petitioner had an unobstructed

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procedural opportunity to present this claim in a prior proceeding. Magistrate Judge Ferraro

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therefore concluded that the Court does not have jurisdiction over the present Petition and

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recommends, accordingly, that the District Court dismiss the Petition for Writ of Habeas

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Corpus and deny any request for a certificate of appealability.

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The parties were advised that, pursuant to Federal Rule of Civil Procedure 72(b)(2),

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any party may serve and file written objections within fourteen days of being served with a

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copy of the Report and Recommendation, and that a party may respond to the other party’s

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objections within fourteen days.

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The Petitioner filed a timely Objection to the Report and Recommendation, to which
the Government filed a response.

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Before the Court are the Petition (Doc. 1), Respondent’s Answer and Supplemental

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Brief (Doc. 10, 25), Petitioner’s Reply and Supplemental Brief (Docs. 11, 15); the Report and

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Recommendation (Doc. 30); Petitioner’s objections (Doc. 32) and the Government’s

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response thereto (Doc. 33).

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The Court finds, after consideration of all matters presented and an independent

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review of the record herein, that the Petition for a Writ of Habeas Corpus shall be denied and

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this action be dismissed in accordance with the Report and Recommendation.

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Based on the foregoing,

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IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 30) is

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hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this

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Court;

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1)
is DENIED and this action is hereby DISMISSED;

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IT IS FURTHER ORDERED that all pending matters are denied as moot;

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IT IS FURTHER ORDERED that any request for certificate of appealability shall

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be denied in accordance with these findings;
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment
accordingly.

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DATED this 30th day of March, 2015.

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