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