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Rojas v. Shartle

United States District Court, D. Arizona

September 22, 2017

Juan Gerardo Rojas, Petitioner,
J.T. Shartle, Warden, Respondent.



         On May 16, 2017, Magistrate Judge Eric J. Markovich issued a Report and Recommendation ("R&R") (Doc. 15) in which he recommended this Court grant Respondent's Motion to Dismiss (Doc. 9) and dismiss Petitioner's Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. 1). Judge Markovich determined that this Court does not have jurisdiction over the matter because Petitioner cannot show he is afforded relief under the savings clause of 28 U.S.C. § 2255(e). The Court agrees with the Magistrate Judge's evaluation, and will grant Respondent's Motion to Dismiss.

         Standard of Review

         The standard of review applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). The statute does not “require [] some lesser review by [this Court] when no objections are filed.” Thomas, 474 U.S. at 149-50. Rather, this Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

         There being no objection by the parties, the Court adopts the Magistrate Judge's recommendation to substitute J.T. Shartle, Warden, as Respondent for “Warden, USP-Tucson” pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

         Also, Petitioner has not objected to the Magistrate Judge's recommendation that the Court may not exercise jurisdiction over the petition simply because Petitioner lacked counsel in his initial § 2255 proceeding. After review, the Court adopts the Magistrate Judge's determination as to this issue.

         Furthermore, since there are no objections to the Magistrate Judge's rendering of the procedural and factual history, the Court adopts those recitations.

         . Factual and Procedural History

         On June 8, 2006, a federal jury in South Dakota found Petitioner guilty of four counts of aggravated sexual assault of a minor and two counts of assault on a minor leading to substantial bodily injury. (Doc. 1-2 at 3-4.) Petitioner was sentenced to life imprisonment. (Id. . at 4.)

         Petitioner appealed to the Eighth Circuit, challenging the calculation of his sentence under the U.S. Sentencing Guidelines, arguing there was not sufficient evidence to convict, and asking for a new trial because one of the victims later recanted her testimony. United States v. Rojas, 520 F.3d 876, 885-86 (8th Cir. 2008). The Eighth Circuit remanded the case for an evidentiary hearing only as to the issue of the recantation. (Id.) The District Court of South Dakota conducted an evidentiary hearing, but denied the motion for new trial. (Doc. 1-2 at 4.) Petitioner did not seek review by the Supreme Court. (Id.)

         On March 16, 2009, Petitioner filed his first § 2255 motion pro se. A South Dakota District Judge denied Plaintiff's motion to vacate on all assertions of ineffective assistance of trial counsel other than the allegation that Petitioner received ineffective assistance because counsel did not attempt to admit taped interviews of the victims to show the interviewer was impermissibly suggestive. Rojas v. United States, 2009 WL 3764011, *4 (D. S.D. Nov. 9, 2009). After referral and review by a Magistrate Judge, the District Judge adopted the Magistrate Judge's recommendation to deny the motion. Rojas v. United States, 2010 WL 1443559 (D. S.D. Apr. 9, 2010).

         On September 26, 2011, Petitioner filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 in the District of South Dakota. Rojas v. Apker, No. 3:11-CV-11-3018-CBK (D. S.D.) at Doc. 1. The petition alleged ineffective assistance of trial counsel, cruel and unusual punishment, and actual innocence. Id. The District Court denied Petitioner's motion, stating that the claims had been previously raised and ruled upon, and Petitioner had not shown his first § 2255 petition was an inadequate remedy. (Doc. 9-1 at 2-3.) The Eighth Circuit affirmed the District Court's decision, agreeing that Petitioner had not demonstrated a § 2255 petition was an inadequate or ineffective remedy. Rojas v. Apker, 470 F.App'x. 522, 523 (8th Cir. 2012) (unpublished).

         On August 4, 2016, Petitioner-presently confined to the United States Penitentiary-Tucson-again filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, this time in the District of Arizona. (Doc. 1) Petitioner acknowledges that in order to seek relief under § 2241, he must prove that his first § 2255 filing was an inadequate or ineffective remedy under the escape hatch provision of § 2255(e). Petitioner does not argue his first § 2255 petition was ineffective or inadequate, instead he claims the Court should nonetheless exercise jurisdiction over this matter because (1) the escape hatch provision is unconstitutionally vague, and (2) his remedy under § 2255 was inadequate because he submitted his initial § 2255 petition pro se. (Doc. 1-2 at 6-10.) In addition, Petitioner raises issues of ineffective assistance of appellate counsel and structural error committed by the Court of Appeals. (Doc. 1 at 7-8.)

         The petition was referred to Magistrate Judge Eric J. Markovich. Judge Markovich issued an R&R, denying relief. (Doc. 15.) Petitioner filed Objections to the Report and Recommendation (Doc. 18) arguing only that (1) the Ninth Circuit has not addressed whether the savings clause is unconstitutionally vague, and (2) the Eleventh Circuit's case law in McCarthan v. Director of Goodwill Industry-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) shows there is a deep uncertainty over the application of the escape hatch provision. (Id. at 3.) Respondent countered, stating that Petitioner has not shown the savings clause is vague. (Doc. 19 at 2-4.) He has not supported his ability to raise his argument with precedential law, and recent case law supporting a circuit split is an outlier. (Id. at 4.) Respondent also argued that the savings clause is not ...

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