United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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).
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