United States District Court, D. Arizona
Honorable Raner C. Collins Chief United States District
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 (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)).
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.
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).
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.”).
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
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.
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.
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).
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
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