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United States v. Agustin-Simon

United States District Court, D. Arizona

November 28, 2018

United States of America, Plaintiff/Respondent,
v.
Domingo Agustin-Simon, Defendant/Movant.

          ORDER

          DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE.

         Movant filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on August 10, 2016. Doc. 1. On October 5, 2017, Judge Willett issued an R&R recommending the Court deny the motion. Doc. 18. The docket reflects that a copy of the R&R was mailed to Movant on October 6, 2017, the prison did not return the mail, and Movant did not object. On November 7, 2017, the Court adopted the R&R and denied Movant's motion. Doc. 19.

         Movant has filed a motion to vacate the November 7 judgment and for leave to amend his motion to vacate his sentence under § 2255. Doc. 21. Movant also filed an amended motion to vacate his sentence. Doc. 22. In his motion to vacate the judgment, Movant asserts that he did not receive a copy of Judge Willett's October 5 R&R and therefore could not file an objection. Doc. 21 at 2, 4. Movant also discusses new claims that he seeks to include in an amended § 2255 motion. Id. at 4-7.

         On July 20, 2018, Judge Willett screened the motion and issued an R&R, recommending that:

1. The Court deny Movant's “Motion to Vacate Judgement and Motion for Leave to Amend Motion to Vacate Under 28 U.S.C. § 2255” (Doc. 21).
2. The Court direct the Clerk of Court to provide Movant with a copy of the form approved by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition or Motion Under 28 U.S.C. § 2254 or § 2255.
3. The Court strike the “Amended Motion to Vacate Under § 2255” filed on March 5, 2018 (Doc. 22).
4. The Court decline to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable.

Doc. 32 at 4.

         Judge Willett found that Movant failed to support his assertion that he did not receive a copy of the October 5 R&R, did not request an opportunity to object to the October 5 R&R, and attempted to raise new claims related to the merits of his conviction, not defects in the proceedings. Id. at 3.

         I. Legal Standard.

         This 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). “[T]he 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). 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); see also 28 U.S.C. § 636(b)(1).

         II. Discussion.

         Movant states two objections to Judge Willett's July 20 R&R. Doc. 36 at 1. First, he asserts that his motion to vacate the November 7 judgment does not attempt to raise new claims on the merits of his conviction. Doc. 36 at 2. Rather, Movant states that he challenges the denial of his § 2255 petition “on the basis that he never received a copy of the Magistrate's Report and Recommendation.” Id. Movant reasserts that he never received the October 5 R&R, and that he has still not received a copy. Id. at 3. Second, Movant objects to Judge ...


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