United States District Court, D. Arizona
A. TEILLBORG SENIOR UNITED STATES DISTRICT JDUGE.
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
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.
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.”).
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.
28 U.S.C. § 2255(f)(3)
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.
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.).
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.
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 ...