Eschief v. United States

          ORDER

          Hon. Stephen M. McNameer, Senior United States District Judge

         Before the Court is William Eschief's (“Movant”) Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (“Amended Motion”). (Doc. 4.)^[1] The matter was referred to Magistrate Judge Eileen S. Willett for a Report and Recommendation. (Docs. 2, 5.) On May 25, 2018, the Magistrate Judge filed a recommendation with this Court. (Doc. 17.) To date, no objections have been filed. Having reviewed the Report and Recommendation, the Court now issues the following ruling.

         I. STANDARD OF REVIEW

         When reviewing a Magistrate Judge's Report and Recommendation, this Court must “make a de novo determination of those portions of the report…to which objection is made, ” and “may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Parties have fourteen days from service of a copy of a Magistrate's recommendation within which to file specific written objections to the Court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Failure to object to a Magistrate Judge's recommendation relieves the Court of conducting a de novo review of the Magistrate Judge's factual findings; the Court then may decide the dispositive motion on the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States Dist. Court, 501 F.2d 196 (9th Cir. 1974)).

         By failing to object to a Report and Recommendation, a party waives its right to challenge the Magistrate's factual findings, but not necessarily the Magistrate's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). A failure to object to a Magistrate Judge's legal conclusion “is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.” Turner, 158 F.3d at 455.

         II. DISCUSSION^[2]

         The Court accepts the Magistrate Judge's recommendation that Movant's Amended Motion be dismissed with prejudice; however, the Court does not adopt the procedural default analysis that the Magistrate Judge employed to arrive at her conclusion. (Doc. 17 at 3.)

         A. Procedural Default Analysis

         The Report and Recommendation's procedural default analysis is inapplicable to Movant's case because Movant waived the right to directly appeal his sentence. “A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.” United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citation omitted). Here, Movant waived the right to directly appeal and collaterally attack his sentence in his plea agreement. (CR Doc. 158 at 4.)^[3] However, the Report and Recommendation appears to overlook this fact. Instead, the Report and Recommendation states “[i]t is undisputed that Movant did not raise the claims contained in his Amended Motion to Vacate on direct appeal”; “[t]he issue is whether the procedural defaults should be excused.” (Doc. 17 at 3.) The Court finds that Movant's waiver rendered the procedural default analysis inapplicable. Thus, the Court does not adopt the Magistrate Judge's procedural default analysis for the reasons set forth below.

         B. Movant's Claims

         Movant claims that he was sentenced using an incorrect criminal history score and that carjacking cannot serve as a predicate felony for a 18 U.S.C. § 924(c) conviction as it no longer constitutes a crime of violence. (Doc. 4 at 5.) The Court agrees with the Magistrate Judge's conclusion that Movant's petition fails on the merits and accepts the Magistrate Judge's recommendation that Movant's Amended Motion should be dismissed with prejudice. (Doc. 17 at 8.)

         1. Challenge to Movant's Criminal History Score

         In his petition, Movant argues that he was sentenced under an incorrect criminal history score and should have been “sentenced under a Criminal History of I.” (Doc. 4 at 5.) The Court accepts the Magistrate Judge's finding that Movant was sentenced under a “Criminal History Category I” and accepts the Magistrate Judge's conclusion that Movant's claim is without merit. (Docs. 13 at 13; 17 at 4.)

         2. Challenge to Movant's 18 U.S.C. § ...