Yazzie v. United States of America

Filing 62

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Chief Magistrate Judge Gregory B. Wormuth. Objections to R&R due by 1/19/2024. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (dkk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIS JOHN YAZZIE, SR.,
Petitioner,
v.

Civ. No. 14-894 JB/GBW
Cr. No. 10-1761 JB

UNITED STATES OF AMERICA,
Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner’s Motion for COA (doc. 60) and
Respondent’s Response thereto (doc. 61).1
On April 28, 2022, a final judgment was entered dismissing Petitioner’s claims
with prejudice. Doc. 52. On June 2, 2022, Petitioner filed a motion for reconsideration of
the final judgment. Doc. 53. On June 7, 2022, the United States filed its response to the
motion for reconsideration. Doc. 54. On July 11, 2022, United States Magistrate Judge
Carmen E. Garza issued proposed findings and a recommended disposition (“PFRD”).
Doc. 55. In summary, Judge Garza recommended that Petitioner’s Motion for
Reconsideration be denied and that the Court decline to issue a certificate of
appealability. Id. On July 27, 2022, Petitioner objected to the PFRD. Doc. 56. The

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Petitioner designated his filing as being made in a different civil case he has brought in this district –
Civ. No. 18-206 JB – and, thus the filing and response were docketed in that case. Upon review, it is clear
that the ruling he seeks to appeal is in the instant case. Consequently, the undersigned has stricken the
filings from the incorrect docket and directed their filing here. See Minute Order, Yazzie v. United States,
CIV No. 1:18-206 JB/GBW, doc. 10 (D.N.M. Jan. 5, 2024).

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United States responded to those objections on July 28, 2022. Doc. 57. On October 3,
2022, prior to any ruling by the District Judge on the PFRD and Petitioner’s objections,
Petitioner filed the instant motion seeking a certificate of appealability. See Motion for
COA, Yazzie v. United States, CIV No. 1:18-206 JB/GBW, doc. 4 (D.N.M. Oct. 3, 2022)
(stricken and docketed in instant case by Court on January 5, 2024).
To obtain a certificate of appealability, the movant must show “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478
(2000). In this circumstance, Petitioner cannot meet the second prong because the
district court has not made a ruling. Judge Garza’s filing proposed findings and
recommended a disposition pursuant to 28 U.S.C. § 636(b)(1)(C). See doc. 55. She did
not rule on Petitioner’s motion. Instead, after considering her recommendations, the
District Judge must make a de novo determination on the motion after considering any
objections from the parties. See 28 U.S.C. § 636(b)(1)(C). When Petitioner filed the
instant motion, the District Judge had not, and has not yet, made that determination.
As such, there is no “ruling” for Petitioner to appeal. Thus, his motion for a certificate
of appealability is not ripe and should be denied.
Nonetheless, one of Judge Garza’s recommendations in the PFRD is that the
“Court DECLINE to issue a certificate of appealability.” Doc. 55 at 4. Should the
District Judge agree that Petitioner’s Motion for Reconsideration should be denied, the
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undersigned recommends that the instant motion be construed as an objection to Judge
Garza’s recommendation regarding the certificate of appealability.
The undersigned therefore RECOMMENDS that Petitioner’s Motion for COA
(doc. 60) be DENIED. The undersigned further RECOMMENDS that the instant motion
be CONSTRUED as an objection to the PFRD (doc. 55).

_____________________________________

GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be
allowed.

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