United States District Court, D. Arizona
ORDER
Honorable Rosemary Marquez United States District Judge
On
January 24, 2019, Petitioner James L. Ford filed a Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
(“Petition”). (Doc. 1.)[1] After being granted an
extension of time to respond to the Petition (Doc. 12),
Respondents filed an Answer on August 15, 2019 (Doc. 14). On
August 5, 2019, Petitioner filed a Motion for Reconsideration
of the Order granting Respondents an extension of time to
answer (Doc. 13), and on August 22, 2019, he filed a Motion
to Stay Proceedings (Doc. 15). On November 7, 2019,
Magistrate Judge Eric J. Markovich filed a Report and
Recommendation (Doc. 17), recommending that this Court deny
the Petition on ripeness grounds, without prejudice and with
leave to re-file; deny Petitioner's Motion for
Reconsideration as moot; and deny Petitioner's Motion to
Stay Proceedings. Petitioner filed an Objection on December
2, 2019. (Doc. 18.) Respondents did not respond to
Petitioner's Objection.
I.
Standard of Review
A
district judge must “make a de novo determination of
those portions” of a magistrate judge's
“report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The advisory committee's notes to Rule
72(b) of the Federal Rules of Civil Procedure state that,
“[w]hen no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation” of
a magistrate judge. Fed.R.Civ.P. 72(b) advisory
committee's note to 1983 addition. See also Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)
(“If no objection or only partial objection is made,
the district court judge reviews those unobjected portions
for clear error.”); Prior v. Ryan, CV
10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18,
2012) (reviewing for clear error unobjected-to portions of
Report and Recommendation).
II.
Discussion
On
November 28, 2018, Judge Cindy K. Jorgenson held a sentencing
hearing in United States of America v. James Lamar Ford,
Jr., CR 18-261-CKJ (LAB) and a final disposition hearing
in United States of America v. James Lamar Ford,
Jr., CR 16-355-CKJ (LAB). In CR 18-261, Judge Jorgenson
sentenced Petitioner to a 24-month term of imprisonment, with
credit for time served. (Doc. 40 in CR 18-261.) In CR 16-335,
Judge Jorgenson sentenced Petitioner to a 12-month term of
imprisonment, to run consecutive to the sentence in CR
18-261. (Docs. 102, 111 in CR 16-335.) The Judgment issued in
16-335 originally specified that Petitioner was to receive
credit for time served (Doc. 102 in CR 16-335); however,
Judge Jorgenson later granted a Motion to Correct Judgment
filed by the Government (see Docs. 106, 108 in CR
16-335) and issued an Amended Judgment reflecting no credit
for time served as to the revocation of supervised release in
CR 16-335 (Doc. 111 in CR 16-335). Petitioner appealed Judge
Jorgenson's Order granting the Government's Motion to
Correct Judgment in CR 16-335, and the appeal is currently
pending in the Ninth Circuit Court of Appeals. (Docs. 109,
110 in CR 16-335.)
In the
Petition filed in the above-captioned civil case, Petitioner
asserts that the Federal Bureau of Prisons miscalculated his
release date by failing to give him credit for time served on
both the sentence in CR 18-261 and the consecutive sentence
in CR 16-335. (Doc. 1.) In his Report and Recommendation,
Judge Markovich found that Petitioner's claims in the
Petition are not ripe because the Ninth Circuit Court of
Appeals has not issued a decision on Petitioner's appeal
in CR 16-335. (Doc. 17 at 4-5.) Accordingly, Judge Markovich
recommends that this Court deny the Petition without
prejudice and with leave to re-file. (Id. at 5.)
In his
Objection, Petitioner specifically notes that he does not
object to Judge Markovich's recommendation that his
Petition be dismissed without prejudice and with leave to
re-file. (Doc. 18 at 2.) However, Petitioner asks this Court
to recognize that Petitioner exhausted administrative
remedies so that “in the event refiling becomes
necessary, this issue will not impede the progress” of
the case. (Id.)
Judge
Markovich's Report and Recommendation does not make any
findings regarding exhaustion of administrative remedies, and
any such findings would be premature in light of Judge
Markovich's unobjected-to finding that the Petition is
not ripe for review. Accordingly, Petitioner's Objection
will be overruled to the extent it asks this Court to make
any findings regarding exhaustion of administrative remedies.
As
Petitioner does not object to Judge Markovich's finding
that the Petition should be dismissed without prejudice and
with leave to re-file on ripeness grounds, the Court has
reviewed that finding for clear error, and has found none.
Accordingly, the Report and Recommendation will be adopted,
the Petition will be dismissed without prejudice and with
leave to re-file, Petitioner's Motion for Reconsideration
will be denied as moot, and Petitioner's Motion to Stay
Proceedings will be denied.
IT
IS ORDERED that Petitioner's Objection (Doc. 18)
to Judge Markovich's Report and Recommendation is
overruled.
IT
IS FURTHER ORDERED that Judge Markovich's Report
and Recommendation (Doc. 17) is accepted and
adopted.
IT
IS FURTHER ORDERED that Petitioner's Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
(Doc. 1) is denied without prejudice and with leave
to re-file. The Clerk of Court is directed to enter
judgment accordingly and close this case.
IT
IS FURTHER ORDERED that Petitioner's Motion for
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