JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 and a Report and Recommendation ("R&R") on the Petition. Although the Petition was filed under 28 U.S.C. § 2241, Respondent argues, and the R&R concludes, that this Petition is not properly brought under the escape hatch of 28 U.S.C. § 2255(e), and therefore, the Petition in this case should be construed as one under 28 U.S.C. § 2255(a). (Doc. 34 at 29). Thus, because Petitioner was convicted in the Tenth Circuit, the R&R concludes that this Court does not have jurisdiction over this case. (Doc. 34 at 32).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, `but not otherwise.'"); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court "must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object."). District courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.").
The Court will review the portions of the R&R to which there was an objection de novo. However, the Court notes that Petitioner states in his objections, "Mr. Safford specifically asks the Court to conduct de novo review of the issues raised in the R&R." (Doc. 35 at 1). Respondent appears to agree that this sentence is adequate to require a de novo review of the entire of the case. See Doc. 36 at 5 ("Respondent respectfully asks that, in conducting its de novo review of the R&R, the Court decline to accept the R&R's discussion of the second prong, . . . .").
Both parties are incorrect, however, as to the scope of this Court's review. The Court is reviewing de novo only the portions of the R&R to which there is an objection. Accord Martin v. Ryan, 2014 WL 5432133, *2 (D. Ariz. October 24, 2014) (". . . when a petitioner raises a general objection to an R&R, rather than specific objections, the Court is relieved of any obligation to review it.")(collecting cases); Warling v. Ryan, 2013 WL 5276367, *2 (D. Ariz. September 19, 2013) ("A general objection has the same effect as would a failure to object") (internal quotations and citation omitted). Thus, Petitioner's request cannot overcome this Circuit's en banc case law that this Court need only review de novo factual and legal issues to which there is an objection. See Reyna-Tapia, 328 F.3d at 1121.
Thus, the Court will review de novo the portions of the R&R to which either party objected.
The R&R recounts to the procedural history of Petitioner's case, and neither party objected to this portion of the R&R. (Doc. 34 at 1-5). Thus, the Court accepts it.
As is relevant to the discussion below, the Court notes that Petitioner was sentenced in May 2010. Petitioner filed his first § 2255 petition in May 2011. Petitioner sought leave to file his second § 2255 petition in July 2014, which the Tenth Circuit denied. Petitioner sought leave to file his third § 2255 petition in April 2016. The Tenth Circuit granted Petitioner leave to file his third § 2255 petition (pursuant to Johnson) but ultimately denied relief.
The general rule is that 28 U.S.C. § 2255 provides the sole procedural mechanism by which a federal prisoner may test the legality of his detention. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). However, § 2255(e) provides an exception to this general rule in limited circumstances.
The R&R recounts the law governing when the escape hatch under § 2255(e) is available, and neither party objected to this portion of the R&R. (Doc. 34 at 10-13). Thus, the Court accepts it.
As is relevant to the discussion below,
(Doc. 34 at 13).
As the R&R states:
(Doc. 34 at 13).
The R&R concludes that Petitioner did not have an unobstructed procedural shot at presenting his claim in the Tenth Circuit. (Doc. 34 at 13-18). Petitioner asks this Court to adopt this conclusion. (Doc. 35 at 2). Respondent objects to this conclusion. (Doc. 36 at 5-8).
Initially, the R&R concludes that Petitioner is not precluded from the escape hatch merely because he did not raise these claims in a direct appeal or in the first § 2255 petition. (Doc. 34 at 13-17). Respondent objects to this conclusion arguing that properly exhausting the claim before the Tenth Circuit was required for the escape hatch to be available because the premise of the cases on which Petitioner now relies was available at the time of Petitioner's opportunity to take a direct appeal and when he filed his first § 2255 petition. (Doc. at 36 at 5-8). The R&R rejects this argument because none of the cases on which Petitioner now relies had been decided at the time he could have taken a direct appeal or when he filed his first § 2255 petition; thus, the R&R concludes that it would have been futile to raise these claims. (Doc. 34 at 15). This Court agrees with the R&R up to this point that exhaustion via a direct appeal and/or a first § 2255 motion of a claim that had not yet been decided by the Supreme Court at that time of those filings and the Tenth Circuit law precluded such a claim at the time of those filings is not a mandatory prerequisite for the escape hatch to be available.
The R&R goes on to conclude Petitioner's third § 2255 before the Tenth Circuit wherein he actually raised (and the Tenth Circuit decided) his Descamps,
This distinction is important in this case because the Supreme Court's decision in Mathis is truly the basis of Petitioner's claim. As the Tenth Circuit noted, Mathis has not been made retroactive to cases not on direct appeal (thus, it did not announce a new rule of constitutional law). Accordingly, Mathis did not qualify Petitioner for a successive § 2255 petition.
However, the R&R goes on to conclude that Petitioner's third § 2255 petition can "count" as his unobstructed procedural shot under Harrison. (Doc. 34 at 17). Nonetheless, the R&R further concludes that Petitioner did not receive an unobstructed procedural shot in his third § 2255 petition because Petitioner's Mathis claim, which the Tenth Circuit decided on a procedural ground, was not a basis to bring a successive § 2255 petition; thus, the Tenth Circuit did not consider the merits of Petitioner's Mathis claim. (Doc. 34 at 18).
The question then is whether, for petitioner to obtain an unobstructed procedural shot to present a claim, the court considering the § 2255 motion must reach the merits of the claim. In considering this question in this case, this Court has assumed the following: 1) Johnson is retroactive, but Petitioner is not entitled to relief under Johnson; 2) the Tenth Circuit was correct that Mathis is not retroactive; and 3) if a court were to reach the merits of Petitioner's Mathis claim, Petitioner would be entitled to relief in the form of a shorter sentence. To attempt to reach the end result of a shorter sentence, Petitioner's petition seems to assume that if a court allows an escape hatch § 2241 petition, the Court is no longer bound by the retroactivity requirement (assuming Petitioner can meet the actual innocence exception which the Court will discuss below). See (Doc. 1 at 16-22).
This Court disagrees with the R&R that the Tenth Circuit's failure to consider Petitioner's Mathis claim on the merits means that Petitioner did not have an unobstructed procedural shot to raise his claims. In an analogous case, a district court concluded that the fact that Apprendi
Thus, because Petitioner in this case litigated a Mathis claim (and a Johnson claim) in the Tenth Circuit as a successive § 2255 petition, he had an unobstructed procedural shot to raise his claims. The R&R will be rejected on this point and Respondent's objection sustained to the extent specified herein.
Having concluded Petitioner had an unobstructed procedural shot to raise his claim in the Tenth Circuit, this Court need not reach the question of whether Petitioner can show actual innocence to qualify for the § 2255(e) escape hatch. Nonetheless, the Court will consider this alternative theory for not applying the escape hatch because Petitioner objected to the R&R's recommendation that the Court find it lacks jurisdiction over his § 2241 petition because Petitioner cannot show actual innocence.
The R&R recounted the law governing actual innocence, and neither party objected to this portion of the R&R. Accordingly, the Court accepts it.
Specifically,
(Doc. 34 at 19).
It is an open question in the Ninth Circuit "whether a petitioner may ever be actually innocent of a noncapital sentence for the purpose of qualifying for the escape hatch." Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012). Ultimately, the R&R concludes that claims of actual innocence of noncapital sentences cannot qualify for the escape hatch, and thus, Petitioner's claim fails. (Doc. 34 at 28). Petitioner objects to this conclusion.
Regardless, however, of whether noncapital sentences can qualify for the escape hatch, the Ninth Circuit Court of Appeals has held, "the purely legal argument that [] petitioner was wrongly classified as a career offender under the Sentencing Guidelines is not cognizable as a claim of actual innocence under the escape hatch." Marrero, 682 F.3d at 1195. see also Dorise v. Matevousian, 692 Fed. App'x 864, 865 (9th Cir. 2017). In other words, Marrero rejected an "actual innocence" claim that was a "purely legal claim that had nothing to do with factual innocence." Marrero, 682 F.3d at 1193.
In this case, Petitioner's claim is clearly a legal claim and not a claim of factual innocence. Petitioner points to no new evidence, but only new law. (Doc. 34 at 28). Because Petitioner has no claim of factual innocence, even if the escape hatch is available to claims of actual innocence of a noncapital sentence, he would not qualify. Therefore, Petitioner cannot qualify for the escape hatch.
The R&R will be accepted on this point and Petitioner's objections are overruled.
As a result of the foregoing, the Petition in this case is properly construed as being under § 2255 and not § 2241. According this Court lacks jurisdiction over the Petition.
The R&R recommends that this Court dismiss this case without prejudice for lack of jurisdiction rather than transfer it to the Tenth Circuit. (Doc. 34 at 31). Neither party objected to this recommendation. Accordingly, the Court accepts it.
To the extent the currently pending petition is properly brought pursuant to 28 U.S.C. § 2241, no certificate of appealability is required to appeal. See Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir. 1997). However, when a petition is brought under § 2241, but is properly characterized as a petition under 28 U.S.C. § 2255, this Court must determine whether a certificate of appealability is appropriate. Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001) (order).
Here, the Court has determined that this Petition is properly construed as one under 28 U.S.C. § 2255; thus, this Court will determine whether to issue a certificate of appealability. "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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, 484 (2000). In this case, it is not debatable that Petitioner cannot make a showing of actual innocence. Therefore, a certificate of appealability will be denied.
