Chaney v. Shartle

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED Magistrate Judge Velasco's 50 Report and Recommendation is hereby ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court over Petitioner's objection. Petitioner's 19 Second Amended Petition for Writ of Habeas Corpus is DENIED. Clerk shall enter judgment accordingly and close its file in this case. Signed by Chief Judge Raner C Collins on 5/24/18.(BAC)

1

WO

2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE DISTRICT OF ARIZONA

9
10

Steven Christopher Chaney,
Petitioner,

11
12

ORDER

v.

13

No. CV-16-00647-TUC-RCC

JT Shartle,

14

Respondent.

15

Before the Court is a March 1, 2018, Report and Recommendation (“R&R”) from

16

Magistrate Judge Bernardo P. Velasco (Doc. 50) recommending this Court deny

17

Petitioner’s Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §

18

2241 (Doc. 19)(“the Petition”). Petitioner filed a timely objection to the R&R1 (Doc. 51)

19

which has been fully briefed (Doc. 52). Additionally, Petitioner filed a notice alerting

20
21
22
23
24
25
26
27
28

1

In spite of the fact that he is represented by counsel, on March 29, 2018 and April 4,
2018, after Respondent had responded to Petitioner’s timely filed objection, Mr. Chaney
independently filed two pleadings purporting to supplement the objection filed by his
attorney. See Docs. 54, 55. By and through these supplemental pleadings, Petitioner
raises additional objections to the R&R. Id. The Court will disregard these supplemental
pleadings as untimely objections. See Fed. R. Civ. P. 72(b)(2)(“within 14 days after
being served with a copy of the recommended disposition, a party may serve and file
specific written objections to the proposed findings and recommendations.”).
Additionally, the Court notes that Petitioner requested (Doc. 13) and was granted
appointment of counsel in this matter (Doc. 4). Under Rule 83.3of the Local Rules of
Civil Procedure for this District, whenever a party is represented by an attorney, that
party cannot thereafter appear or act in that party’s own behalf unless certain conditions
are met. L.R. Civ. 83.3(c). Those conditions have not been met in this case. Id.
Although the Court may exercise its discretion to hear a represented party in open court,
the Court declines to do so here. See, id.

1

this Court to a Sixth Circuit matter examining whether Kentucky second-degree burglary

2

categorically qualifies as generic burglary under the ACCA's enumerated-offenses clause

3

– the same issue presented in the instant matter. Doc. 53 (citing United States v. Malone,

4

No. 17-5727, 2018 WL 2107179, at *3 (6th Cir. May 8, 2018)).

5

The Court has considered the foregoing and, for the following reasons, accepts and

6

adopts the R&R’s findings of fact and conclusions of law. As such, the Court will also

7

deny the Petition.

8

A.

LEGAL STANDARD

9

The duties of the district court in connection with an R&R are set forth in Rule 72

10

of the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court

11

may “accept, reject, or modify the recommended disposition; receive further evidence; or

12

return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3); 28

13

U.S.C. § 636(b)(1). The Court will not disturb a Magistrate Judge's Order unless his

14

factual findings are clearly erroneous or his legal conclusions are contrary to law. 28

15

U.S.C. § 636(b)(1)(A). “[T]he magistrate judge's decision ... is entitled to great deference

16

by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001).

17

In the event a party objects to an R&R, “[a] judge of the [district] court shall make

18

a de novo determination of those portions of the [R&R] to which objection is made.” 28

19

U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). However, on its

20

face, Section 636(b)(1) “does not . . . require any review at all . . . of any issue that is not

21

the subject of an objection.” Thomas, 474 U.S. at 149; see also, Fed. R. Civ. P. 72(b)(3)

22

(“The district judge must determine de novo any part of the magistrate judge's disposition

23

that has been properly objected to.”).

24

B.

BACKGROUND

25

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

26

introduction of the R&R. Doc. 50 at 1-4. Petitioner’s objection to the R&R does not

27

concern these findings. See Doc. 51. As such, and by reference, this Court accepts and

28

adopts the introduction section of the R&R.

-2-

1

C.

DISCUSSION

2

Magistrate Judge Velasco’s R&R recommends this Court find, as a threshold

3

matter, that the Petition was properly brought under § 2241 (by way of 28 U.S.C. §

4

2255(e) (“the escape hatch provision”)).

5

explicitly endorses this recommendation. See Doc. 51 at 2, 4 (also arguing that this Court

6

should issue a certificate of appealability in the event it should disagree with the

7

Magistrate’s recommendation). There being no objection to Judge Velasco’s disposition

8

of this matter, this Court is not obliged to review it. Nonetheless, this Court has reviewed

9

this portion of the R&R (and associated briefs from the parties) and finds it to be

10

thoroughly well-reasoned. This Court therefore accepts and adopts this section and

11

concludes that the Petition was properly brought under § 2241.

Doc. 50 at 4-13.

Petitioner’s objection

12

Turning to the merits of the petition, Chaney’s sole, substantive objection to the

13

R&R concerns Judge Velasco’s determination that second-degree burglary, as defined by

14

Kentucky Revised Statutes (“K.R.S.”) § 511.030(1), categorically qualifies as generic

15

burglary for purposes of sentencing enhancement pursuant to the Armed Career Criminal

16

Act’s (“ACCA”) enumerated-offenses clause. According to Petitioner, Judge Velasco’s

17

reasoning is flawed because it “disregards binding precedent in light of authoritative

18

interpretations of state law.” Doc. 51 at 2.

19

As an initial point, the Court observes that Petitioner’s objection merely reasserts

20

the same points argued in favor of his Second Amended Petition. See Docs. 19 at ¶ 40;

21

41 at 3-5. The Court further observes that, despite his insistence that the Sixth Circuit

22

would endorse his position, that circuit has not adopted the argument he continues to

23

pursue by and through his objection. See Doc. 56; see also, United States v. Maloney,

24

No. 17-5727, 2018 WL 2107179 (6th Cir. May 8, 2018).

25

Having considered the issue de novo, and for the reasons outlined below, the

26

Court finds it is in agreement with the R&R’s analysis of K.R.S. § 511.030, as compared

27

to generic burglary. Doc. 50 at 17 – 20. Incidentally, the Court agrees with the Sixth

28

Circuit’s disposition in Maloney.

-3-

1

The argument Petitioner pursues by and through his objection is two-fold. First,

2

he suggests that the Kentucky Supreme Court has issued decisions which, “show a

3

realistic probability that Kentucky second-degree burglary is overbroad” when compared

4

to generic burglary. Doc. 51 at 2-3, citing Gonzalez v. Duenas-Alvarez, 549 U.S. 183,

5

193 (2007). More specifically, Petitioner argues that cases issued by the Kentucky high

6

court suggest that the use of the term “dwelling” in the Kentucky second-degree burglary

7

necessarily implicates the statutory definition of “building,” and that, because the latter

8

term encompasses vehicles and movable enclosures, the Supreme Court’s decision in

9

Mathis v. United States, 136 S.Ct. 2243, 2248 (2016), should compel this Court to find

10

that Kentucky second-degree burglary is broader than generic burglary.

11

The Court has examined these cases and finds that Kentucky case law does not, in

12

fact, support Petitioner’s position. See, e.g., Soto v. Commonwealth, 139 S.W.3d 827,

13

869 (Ky. 2004)(finding that while K.R.S. 511.010(1) defines “building,” K.R.S.

14

511.010(2) “separately defines a ‘dwelling’ as ‘a building which is usually occupied by a

15

person lodging therein,’ indicating that ‘building’ encompasses a broader category of

16

structures than ‘dwelling.’ ”); Colwell v. Commonwealth, 37 S.W.3d 721, 726 (Ky. 2000)

17

(concluding, per the statutory definitions, that “every dwelling is a building, but every

18

building is not a dwelling.”).

19

Second, Petitioner complains that Judge Velasco’s analysis inappropriately draws

20

support from United States Moody, No. 5:13-cr-133-KKC-HAI, 2017 WL 2434788 (E.D.

21

Ky. Mar. 9, 2017), adopted by 2017 WL 2434535 (E.D. Ky. Jun. 5, 2017). Id. at 2-3. In

22

that case, an Eastern District of Kentucky magistrate judge considering the same statute

23

of conviction at issue in this case recommended, as Judge Velasco did, that the district

24

court should find that it categorically qualified as generic burglary.

25

Petitioner argues, was subsequently undercut by United States v. Stitt, 860 F.3d 854, 858-

26

59 (6th Cir. 2017), in which the Sixth Circuit, sitting en banc, held that Tennessee

27

aggravated-burglary does not categorically qualify as generic burglary. Id. at 3.

28

Id.

Moody,

However, as Petitioner himself observed, the Sixth Circuit has, even more

-4-

1

recently, confronted “the very question that [Petitioner’s] petition presents – whether, in

2

the wake of Stitt, Kentucky’s second-degree burglary statute qualifies as a generic

3

burglary and thus a ‘violent felony’ under ACCA.” Doc. 53 at. 3. And in that case,

4

United States v. Malone, the Sixth Circuit was aligned with Moody and Judge Velasco in

5

so far as it held that Kentucky second-degree burglary does so qualify. No. 17-5727,

6

2018 WL 2107179 at *3 (6th Cir. May 8, 2018).

7

In sum, and for the reasons discussed in the R&R, this Court finds Petitioner’s

8

180-month sentence, which was predicated on his three prior convictions for Kentucky

9

second-degree burglary, was not inappropriately enhanced under the ACCA.

10

IT IS ORDERED:

11

1.

12

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

13

Court over Petitioner’s objection.

14

2,

15

DENIED.

16

3.

17

case.

18

Magistrate Judge Velasco’s Report and Recommendation (Doc. 50) is hereby

Petitioner’s Second Amended Petition for Writ of Habeas Corpus (Doc. 19) is

The Clerk of the Court shall enter judgment accordingly and close its file in this

Dated this 24th day of May, 2018.

19
20
21
22
23
24
25
26
27
28

-5-