United States District Court, D. Arizona
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. ยง ...