United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
23, 2016, Movant filed a Motion to Vacate, Set Aside, or
Correct his sentence (“Motion to Vacate”). On
November 14, 2016, the Magistrate Judge to whom this case was
assigned stayed consideration of the Motion to Vacate pending
two Supreme Court decisions.
7, 2018, the Government moved to lift the stay and to dismiss
the Motion to Vacate. (Doc. 11). Movant has appointed counsel
in this case. Counsel responded to the Government's
motion. (Doc. 14). After Movant's counsel responded to
the Government's motion, Movant moved for the appointment
of new counsel. (Doc. 15).
pending before the Court is the Report and Recommendation
(“R&R”) from the Magistrate Judge
recommending that the Motion to Vacate be denied. (Doc. 16).
Movant's appointed counsel did not file objections to the
R&R. However, Movant, pro se, has filed objections.
(Docs. 17 and 18).
Review of R&R
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc) (emphasis in
original); Schmidt v. Johnstone, 263 F.Supp.2d 1219,
1226 (D. Ariz. 2003) (“Following Reyna-Tapia,
this Court concludes that de novo review of factual
and legal issues is required if objections are made,
‘but not otherwise.'”); Klamath Siskiyou
Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d
1027, 1032 (9th Cir. 2009) (the district court “must
review de novo the portions of the [Magistrate Judge's]
recommendations to which the parties object.”).
District courts are not required to conduct “any review
at all . . . of any issue that is not the subject of
an objection.” Thomas v. Arn, 474 U.S. 140,
149 (1985) (emphasis added); see also 28 U.S.C.
§ 636(b)(1) (“the court shall make a de
novo determination of those portions of the [report and
recommendation] to which objection is made.”).
Movant has counsel in this case, the Court need not consider
his pro se objections. Nonetheless, the Court will consider
de novo whether the objections impact the result of this
after the R&R was issued, the Ninth Circuit Court of
Appeals decided United States v. Blackstone, No.
17-55023, 2018 WL 4344096 (9th Cir. Sept. 12, 2018). Based on
the Court of Appeals decision in Blackstone, it is
likely that Movant's Motion to Vacate in this case is
untimely. Nonetheless, because neither party briefed this
issue, the Court will consider the merits of the Motion to
on the Ninth Circuit Court of Appeals opinion in United
States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018), the
Court agrees with the R&R that Movant's motion fails
on the merits. (Doc. 16 at 3-4). Movant's objections
(Docs. 17 and 18) do not change this analysis. Further, the
Court agrees with the R&R, that new counsel would not
change this analysis. (See Doc. 16 at 4).
based on the foregoing, IT IS ORDERED that
the Government's Motion (Doc. 11) is granted to the
extent specified herein.