Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Melchor-Zaragoza v. USA

United States District Court, D. Arizona

April 2, 2019

Aquileo Melchor-Zaragoza, Movant/Defendant,
v.
USA, Respondent/Plaintiff.

          ORDER

          JAMES A. TEILLBORG SENIOR UNITED STATES DISTRICT JDUGE.

         Pending before the Court is the Second Amended Report and Recommendation (“R&R”) from the Magistrate Judge to whom this case was assigned recommending that the Motion to Vacate, Set Aside or Correct Sentence (“Motion”) in this case be denied because it is barred by the statute of limitations. (Doc. 30). Neither party has objected to this conclusion as it relates to Johnson and 28 U.S.C. § 2255(f)(3) (the one-year statute of limitations for § 2255 motions begins to run from the “date on which the right asserted was initially recognized by the Supreme Court”).[1]

         Nonetheless, Movant has filed a document called an objection urging this Court to accept the recommendation that a certificate of appealability be granted because Movant argues he is actually innocent, and his motion is timely for that reason. (Doc. 31). Respondent has replied to the objection and takes no position on the certificate of appealability issue. (Doc. 32).

         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). 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.”).

         II. Motion

         A. Background

         The R&R recounted the factual and procedural background of this case at pages 1-5. (Doc. 30). Neither party objected to this portion of the R&R and the Court adopts it.

         B. 28 U.S.C. § 2255(f)(3)

         The R&R applied United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018) to determine that the Motion in this case is not timely under 28 U.S.C. § 2255(f)(3). (Doc. 30 at 13-14). Neither party objected to this recommendation and the Court adopts it.

         C. Actual Innocence

         The R&R addressed whether the actual innocence exception to the statute of limitations would make the Motion in this case timely. (Doc. 30 at 14-17). The R&R concluded that because Movant is arguing legal innocence, not factual innocence, Movant does not qualify for the actual innocence gateway around the statute of limitations. (Id.).

         In his objections, Movant's entire argument is: “Mr. Melchor's contention that his motion is timely because he is actually innocent of the § 924(c) count has sufficient merit to warrant further review by the court of appeals, and so he respectfully asks the Court to accept the magistrate judge's recommendation to certify the denial of his § 2255 motion for appeal if it should accept the his conclusion that his motion is untimely because of Blackstone.” (Doc. 31 at 2). It is unclear whether this sentence is an “objection” to the R&R's recommendation on actual innocence. Nonetheless the Court will consider the issue de novo.

         The R&R concludes that to qualify for the actual innocence gateway around the statute of limitations, Movant must be alleging factual innocence, not legal innocence. (Doc. 30 at 14-17). Movant does not dispute that he is arguing legal innocence. The R&R also notes that Movant may not be able to qualify for the actual innocence gateway because even if the residual clause of § 924(c) is constitutionally invalid, Movant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.