Safford v. Lothrop

          ORDER

          James A. Teilborg Senior United States District Judge.

         Pending 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 made.”).

         The 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, ….”).

         Both 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.

         Thus, the Court will review de novo the portions of the R&R to which either party objected.

         II. Background

         The 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 accepts it.

         As is 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 denied relief.

         III. 28 U.S.C. § 2255 v. 28 U.S.C. § 2241

         The 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 circumstances.

         IV. Escape Hatch

         The 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. 2006).

(Doc. 34 at 13).

         A. Unobstructed ...