Estep v. Shartle

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that Magistrate Judge Leslie A. Bowman's Report and Recommendation (Doc. 14 ) is accepted and adopted. It is further Ordered that Petitioner's Petition (Doc. 1 ) is denied and this action is dismissed. The Clerk of Court is directed to close this case. Signed by Judge Rosemary Marquez on 4/15/2016. (MFR)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John H. Estep, No. CV-15-00443-TUC-RM Petitioner, 10 11 v. 12 ORDER JT Shartle, 13 Defendant. 14 15 Pending before the Court is a Report and Recommendation issued by Magistrate 16 Leslie A. Bowman (Doc. 14). In her Report and Recommendation, Judge Bowman 17 recommends that this Court dismiss Petitioner’s Petition because his claim is not 18 cognizable. No objections were filed. 19 A district judge must “make a de novo determination of those portions” of a 20 magistrate judge’s “report or specified proposed findings or recommendations to which 21 objection is made.” 28 U.S.C. §636(b)(1)(C). The advisory committee notes to Rule 22 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is 23 filed, the court need only satisfy itself that there is no clear error on the face of the record 24 in order to accept the recommendation” of a magistrate judge. See also Prior v. Ryan, 25 2012 WL 1344286, *1 (D. Ariz. Apr. 8, 2012) (reviewing for clear error unobjected-to 26 portions of Report and Recommendation); Johnson v. Zema Sys. Corp., 170 F.3d 734, 27 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district judge 28 reviews those unobjected portions for clear error.”). 1 This Court agrees with the Report and Recommendation’s conclusion that 2 Petitioner has not presented a cognizable challenge to the sentencing court’s restitution 3 order. Ninth Circuit cases that review 28 U.S.C. § 2241 challenges to a sentencing 4 court’s restitution order involve the court’s improper delegation of authority to a prison. 5 See, e.g., Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012); United States v. Lemoine, 546 6 F.3d 1042 (9th Cir. 2008). Here, however, the delegation challenged is not to the prison 7 but to the United States Office of Personnel Management. Thus, Petitioner is suing 8 Respondent for habeas relief when Respondent has no involvement in the alleged 9 unlawful conduct. The Report and Recommendation is correct that the more appropriate 10 avenue for relief was Petitioner’s direct appeal of his sentence. Petitioner failed to raise 11 this issue in his direct appeal and may not cure that failure by raising it in a § 2241 12 petition. 13 Additionally, Petitioner’s case varies in another significant way from the 14 precedent detailing unlawful delegations of the sentencing court’s authority. Typically, 15 the cases involve the prison creating a schedule for restitution payments and determining 16 how much to take out of the prisoner’s prison account. See, e.g., Ward, 678 F.3d at 1044; 17 Lemoine, 546 F.3d at 1044. This improperly leaves it to the prisons to determine when 18 and how restitution payments will be made. To the contrary, here, the sentencing court 19 directed the Office of Personnel Management to take all of Petitioner’s monthly 20 retirement benefits until the restitution order has been fulfilled. By not leaving it to the 21 Office of Personnel Management to determine when and how much of his retirement 22 funds would be contributed to pay off the restitution order, the sentencing court did not 23 delegate its authority. See Gunning, 401 F.3d at 1149. Thus, even if Petitioner had made 24 a cognizable claim for improper delegation, the facts demonstrate that no such delegation 25 occurred. 26 ... 27 ... 28 ... -2- 1 Accordingly, 2 IT IS HEREBY ORDERED as follows: 3 1. 4 Magistrate Judge Leslie A. Bowman’s Report and Recommendation (Doc. 14) is accepted and adopted. 5 2. Petitioner’s Petition (Doc. 1) is denied and this action is dismissed. 6 3. The Clerk of Court is directed to close this case. 7 Dated this 15th day of April, 2016. 8 9 10 Honorable Rosemary Márquez United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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