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Chaney v. JT Shartle

United States District Court, D. Arizona

May 24, 2018

Steven Christopher Chaney, Petitioner,
v.
JT Shartle, Respondent.

          ORDER

          Honorable Raner C. Collins Chief United States District Judge.

         Before the Court is a March 1, 2018, Report and Recommendation (“R&R”) from Magistrate Judge Bernardo P. Velasco (Doc. 50) recommending this Court deny Petitioner's Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 19)(“the Petition”). Petitioner filed a timely objection to the R&R[1] (Doc. 51) which has been fully briefed (Doc. 52). Additionally, Petitioner filed a notice alerting this Court to a Sixth Circuit matter examining whether Kentucky second-degree burglary categorically qualifies as generic burglary under the ACCA's enumerated-offenses clause - the same issue presented in the instant matter. Doc. 53 (citing United States v. Malone, No. 17-5727, 2018 WL 2107179, at *3 (6th Cir. May 8, 2018)).

         The Court has considered the foregoing and, for the following reasons, accepts and adopts the R&R's findings of fact and conclusions of law. As such, the Court will also deny the Petition.

         A. LEGAL STANDARD

         The duties of the district court in connection with an R&R are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U .S.C. § 636(b)(1). The district court 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); 28 U.S.C. § 636(b)(1). The Court will not disturb a Magistrate Judge's Order unless his factual findings are clearly erroneous or his legal conclusions are contrary to law. 28 U.S.C. § 636(b)(1)(A). “[T]he magistrate judge's decision ... is entitled to great deference by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001).

         In the event a party objects to an R&R, “[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.” 28 U.S.C. § 636(b)(1); see Thomas v. Arn, 474 U.S. 140, 149-50 (1985). However, on its face, Section 636(b)(1) “does not . . . require any review at all . . . of any issue that is not the subject of an objection.” Thomas, 474 U.S. at 149; see also, Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”).

         B. BACKGROUND

         The factual and procedural background of this case is thoroughly detailed in the introduction of the R&R. Doc. 50 at 1-4. Petitioner's objection to the R&R does not concern these findings. See Doc. 51. As such, and by reference, this Court accepts and adopts the introduction section of the R&R.

         C. DISCUSSION

         Magistrate Judge Velasco's R&R recommends this Court find, as a threshold matter, that the Petition was properly brought under § 2241 (by way of 28 U.S.C. § 2255(e) (“the escape hatch provision”)). Doc. 50 at 4-13. Petitioner's objection explicitly endorses this recommendation. See Doc. 51 at 2, 4 (also arguing that this Court should issue a certificate of appealability in the event it should disagree with the Magistrate's recommendation). There being no objection to Judge Velasco's disposition of this matter, this Court is not obliged to review it. Nonetheless, this Court has reviewed this portion of the R&R (and associated briefs from the parties) and finds it to be thoroughly well-reasoned. This Court therefore accepts and adopts this section and concludes that the Petition was properly brought under § 2241.

         Turning to the merits of the petition, Chaney's sole, substantive objection to the R&R concerns Judge Velasco's determination that second-degree burglary, as defined by Kentucky Revised Statutes (“K.R.S.”) § 511.030(1), categorically qualifies as generic burglary for purposes of sentencing enhancement pursuant to the Armed Career Criminal Act's (“ACCA”) enumerated-offenses clause. According to Petitioner, Judge Velasco's reasoning is flawed because it “disregards binding precedent in light of authoritative interpretations of state law.” Doc. 51 at 2.

         As an initial point, the Court observes that Petitioner's objection merely reasserts the same points argued in favor of his Second Amended Petition. See Docs. 19 at ¶ 40; 41 at 3-5. The Court further observes that, despite his insistence that the Sixth Circuit would endorse his position, that circuit has not adopted the argument he continues to pursue by and through his objection. See Doc. 56; see also, United States v. Maloney, No. 17-5727, 2018 WL 2107179 (6th Cir. May 8, 2018).

         Having considered the issue de novo, and for the reasons outlined below, the Court finds it is in agreement with the R&R's analysis of K.R.S. § 511.030, as compared to generic burglary. Doc. 50 at 17 - 20. Incidentally, the Court agrees with the Sixth Circuit's disposition in Maloney.

         The argument Petitioner pursues by and through his objection is two-fold. First, he suggests that the Kentucky Supreme Court has issued decisions which, “show a realistic probability that Kentucky second-degree burglary is overbroad” when compared to generic burglary. Doc. 51 at 2-3, citing Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). More specifically, Petitioner argues that cases issued by the Kentucky high court suggest that the use of the term “dwelling” in the Kentucky second-degree burglary necessarily implicates the statutory definition of “building, ” and that, because the latter term encompasses vehicles and movable enclosures, the ...


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