United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
before the Court is Petitioner's Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2241 and a
Report and Recommendation (“R&R”) on the
Petition. Although the Petition was filed under 28 U.S.C.
§ 2241, Respondent argues, and the R&R concludes,
that this Petition is not properly brought under the escape
hatch of 28 U.S.C. § 2255(e), and therefore, the
Petition in this case should be construed as one under 28
U.S.C. § 2255(a). (Doc. 34 at 29). Thus, because
Petitioner was convicted in the Tenth Circuit, the R&R
concludes that this Court does not have jurisdiction over
this case. (Doc. 34 at 32). I.
Review of R&R 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). 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
Court will review the portions of the R&R to which there
was an objection de novo. However, the Court notes that
Petitioner states in his objections, “Mr. Safford
specifically asks the Court to conduct de novo review of the
issues raised in the R&R.” (Doc. 35 at 1).
Respondent appears to agree that this sentence is adequate to
require a de novo review of the entire of the case.
See Doc. 36 at 5 (“Respondent respectfully
asks that, in conducting its de novo review of the R&R,
the Court decline to accept the R&R's discussion of
the second prong, ….”).
parties are incorrect, however, as to the scope of this
Court's review. The Court is reviewing de novo
only the portions of the R&R to which there is an
objection. Accord Martin v. Ryan, 2014 WL 5432133,
*2 (D. Ariz. October 24, 2014) (“…when a
petitioner raises a general objection to an R&R, rather
than specific objections, the Court is relieved of any
obligation to review it.”)(collecting cases);
Warling v. Ryan, 2013 WL 5276367, *2 (D. Ariz.
September 19, 2013) (“A general objection has the same
effect as would a failure to object”) (internal
quotations and citation omitted). Thus, Petitioner's
request cannot overcome this Circuit's en banc
case law that this Court need only review de novo factual and
legal issues to which there is an objection. See
Reyna-Tapia, 328 F.3d at 1121.
the Court will review de novo the portions of the R&R to
which either party objected.
R&R recounts to the procedural history of
Petitioner's case, and neither party objected to this
portion of the R&R. (Doc. 34 at 1-5). Thus, the Court
relevant to the discussion below, the Court notes that
Petitioner was sentenced in May 2010. Petitioner filed his
first § 2255 petition in May 2011. Petitioner sought
leave to file his second § 2255 petition in July 2014,
which the Tenth Circuit denied. Petitioner sought leave to
file his third § 2255 petition in April 2016. The Tenth
Circuit granted Petitioner leave to file his third §
2255 petition (pursuant to Johnson) but ultimately
28 U.S.C. § 2255 v. 28 U.S.C. § 2241
general rule is that 28 U.S.C. § 2255 provides the sole
procedural mechanism by which a federal prisoner may test the
legality of his detention. Lorentsen v. Hood, 223
F.3d 950, 953 (9th Cir. 2000). However, § 2255(e)
provides an exception to this general rule in limited
R&R recounts the law governing when the escape hatch
under § 2255(e) is available, and neither party objected
to this portion of the R&R. (Doc. 34 at 10-13). Thus, the
Court accepts it.
As is relevant to the discussion below, A § 2255 motion
is inadequate or ineffective and thus “a § 2241
petition is available under the ‘escape hatch' of
§ 2255 when a petitioner (1) makes a claim of actual
innocence, and (2) has not had an ‘unobstructed
procedural shot' at presenting that claim.”
Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir.
(Doc. 34 at 13).