Gutierrez v. United States of America
ORDER ADOPTING 17 REPORT AND RECOMMENDATIONS by District Judge William P. Johnson. Accordingly, IT IS ORDERED that the PFRD is ADOPTED, the Motion is DENIED WITH PREJUDICE, and a certificate of appealability is DENIED. (kg)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
CR 12-155 WJ
CV 16-371 WJ/GJF
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on review of the record. On October 28, 2016,
Defendant filed an “Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C.
§ 2255” (“Motion”). CV Doc. 10. The United States responded [CV Doc. 13] and Defendant
replied. CV Doc. 16. Magistrate Judge Gregory Fouratt filed his Proposed Findings and
Recommended Disposition (“PFRD”) on October 10, 2017, recommending that the Motion be
denied as Defendant had waived as part of his plea agreement the right to collaterally attack his
conviction or sentence. CV Doc. 17.
On its final page, the PFRD cautioned Defendant and his counsel about the affirmative
obligation to file objections to the PFRD within 14 days in order to preserve his right to further
review. Id. at 14 (stating in bold-face that a “party must file any objections with the Clerk of the
District Court within the fourteen-day period of 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.”). On November 22, 2017, after being granted additional time to consider
whether to file objections, Defendant filed a notice advising that “he will not file any objections
to the Proposed Findings and Recommended Disposition[.]” CV Doc. 20.
The Tenth Circuit has held “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property, With
Buildings, Appurtenances, Improvements, and Contents, Known As: 2121 East 30th Street, Tulsa
Okla., 73 F.3d 1057, 1059 (10th Cir. 1996). The Tenth Circuit, “like numerous other circuits,
[has] adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” Id. at 1059 (citations omitted).
The Court has carefully reviewed the PFRD and the underlying briefing. The Court did
not review the PFRD de novo, however, because neither party objected thereto. Rather, the
Court reviewed Magistrate Judge Fouratt’s findings and recommendations to determine if they
are clearly erroneous, arbitrary, contrary to law, or an abuse of discretion. The Court determines
that they are not. Accordingly, the Court will adopt the PFRD in its entirety.
In addition to adopting the PFRD, enforcing the collateral attack waiver, and denying the
instant motion with prejudice, the Court also will deny a certificate of appealability. See Rule
11(a), Rules Governing Section 2255 Proceedings for the United States District Courts (2017). It
is well-established that “[f]ailure of a [party] to object to a magistrate judge’s recommendations
results in a waiver of appellate review.” Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.
Accordingly, IT IS ORDERED that the PFRD is ADOPTED, the Motion is DENIED
WITH PREJUDICE, and a certificate of appealability is DENIED.
UNITED STATES DISTRICT JUDGE
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