Bates v. Colbert

• Court: District Court, D. Arizona
• Decided: January 26, 2024
• Docket: 4:22-cv-00241
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Roger Bates, No. CV-22-00241-TUC-JGZ (LCK)

10 Petitioner, Order Accepting Report and Recommendation 11 v.

12 Unknown Colbert,

13 Respondent. 14 15 16 On August 17, 2023, Magistrate Judge Lynnette C. Kimmins issued a Report and 17 Recommendation (“R&R”) recommending the Court deny Petitioner Roger Bates’s 18 Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (“Petition”). 19 (Doc. 29.) The Court has reviewed the record, including Bates’s Objection (Doc. 25) and 20 Respondent’s response (Doc. 38), and, for the reasons stated below, will accept Judge 21 Kimmins’s R&R. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. 22 I. Legal Standard 23 A party may file written objections to an R&R within fourteen days of being served 24 with a copy of it; those objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 25 14 days after being served with a copy of the recommended disposition, a party may serve 26 and file specific written objections to the proposed findings and recommendations.”). “The 27 district judge must determine de novo any part of the magistrate judge’s disposition that 28 has been properly objected to. The district judge may accept, reject, or modify the 1 recommended disposition; receive further evidence; or return the matter to the magistrate 2 judge with instructions.” Fed. R. Civ. P. 72(b)(3). 3 This Court is “not required to review any portion of an R&R to which no specific 4 objection has been made.” Scott v. Shinn, No., 2021 WL 5833270, at *3 (D. Ariz. Dec. 9, 5 2021); see Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress 6 intended to require district court review of a magistrate’s factual or legal conclusions, under 7 a de novo or any other standard, when neither party objects to those findings.”); United 8 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must 9 review the magistrate judge’s findings and recommendations de novo if objection is made, 10 but not otherwise.” (emphasis in original)). That is, district judges need not review an 11 objection to an R&R that is general and non-specific. Scott, 2021 WL 5833270, at *3; see, 12 e.g., Warling v. Ryan, 2013 WL 5276367, *2 (D. Ariz. 2013) (“Because de novo review of 13 an entire R&R would defeat the efficiencies intended by Congress, a general objection ‘has 14 the same effect as would a failure to object.’” (citations omitted)); Haley v. Stewart, 2006 15 WL 1980649, *2 (D. Ariz. 2006) (“[G]eneral objections to an R&R are tantamount to no 16 objection at all.”). 17 II. Report and Recommendation1 18 Bates asserted two grounds for relief in his § 2241 Petition: (1) he is “actually 19 innocent of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) & (e) in light 20 of United States v. Hillie, 14 F.4th 677 (D.C. Cir. 2021)”; and (2) “it is cruel and unusual 21 punishment under the 8th [A]mendment to the Constitution to hold [him] in unsafe 22 conditions when no set of conditions in the Bureau of Prisons (‘BOP’) during the COVID- 23 19 pandemic can be constitutional.” (Doc. 4-1 at 1–2.) 24 In the R&R, Judge Kimmins found that Bates had waived Ground 2 and, even if not 25 withdrawn, the claim should be dismissed on the merits. (Doc. 21 at 2, n.1.) Judge 26 Kimmins concluded the Court lacked jurisdiction over Ground 1 and, even if the Court 27 could review the claim, it lacked merit. (Id. at 5, n.2.) In his Objection to the R&R, Bates

28 1The factual and procedural history of this case is set forth in the Magistrate Judge’s Report and Recommendation. (Doc. 21.) 1 challenges Judge Kimmins’s dismissal of both claims. 2 III. Discussion 3 A. Bates’s Objection to Ground Two 4 Bates objects to the R&R’s finding that he waived his claim in Ground 2. (Doc. 25 5 at 1.) Bates asserts he “searched his filings and does not see any indication of [him] having 6 waived a claim.” (Id.) Bates further argues: “If his former litigator/inmate assistant waived 7 that claim, it was not [Bates]’s ‘voluntary waiver,’” so he “recants any such waivers and 8 stands on his innocence claims on Counts-1 and 2, ad hoc.” (Id.) The Court will overrule 9 Bates’s objection. 10 Bates’s filings show that he waived his Ground 2 claim. In his January 20, 2023 11 Reply to Respondent’s “Return and Answer,” Bates wrote on Page 2: “Petitioner waives 12 his claim as to Ground Two. . . . Petitioner is aware of the right he is relinquishing and does 13 so knowingly, voluntarily, and intelligently.” (Doc. 17 at 2 (internal quotations omitted).) 14 Bates signed the filing which, notably, contains other arguments that Bates continues to 15 assert in this action. 16 Assuming for the sake of argument that Bates did not waive his claim as to Ground 17 Two, the Court would nonetheless dismiss the claim. As Judge Kimmins indicated in the 18 R&R, the Ninth Circuit Court of Appeals has held that claims such as those Bates asserts 19 in Ground 2, “lie outside the historic core of habeas corpus.” Pinson v. Carvajal, 69 F.4th 20 1059, 1062, 1065–55 (9th Cir. 2023). 21 B. Bate’s Objection to Ground One 22 In concluding the Court lacks jurisdiction to consider Ground One, Judge Kimmins 23 reasoned that: because Bates is contesting the legality of his conviction, his claim falls 24 within the parameters of 28 U.S.C. § 2255, rather than § 2241; Bates had previously filed 25 a § 2255 petition; and he does not qualify to file a successive § 2255 petition under the 26 savings clause of § 2255(e). Judge Kimmins relied on the Supreme Court’s recent decision 27 in Jones v. Hendrix, 599 U.S. 465 (2023), which held that a prisoner “may not file a second 28 or successive § 2255 motion based solely on a more favorable interpretation of statutory 1 law adopted after his conviction became final and his initial § 2255 motion was resolved.” 2 Judge Kimmins explained that Jones precludes Bates’s claim that he is actually innocent 3 as a result of the D.C. Circuit Court of Appeal’s 2021 decision in United States v. Hillie, 4 14 F.4th 677 (D.C. Cir. 2021), reh’g, 39 F.4th 674 (D.C. Cir. 2022), which adopted a 5 different statutory interpretation of certain elements of Bates’s offenses. 6 Bates objects to the R&R’s assessment of Jones, arguing Jones “does not foreclose 7 review” because it would be impossible or impractical for him to bring a § 2255 motion to 8 test the legality of his detention. (Doc. 25 at 2.) Bates asserts he “does not bring a collateral 9 attack on his sentence,” but rather “brings an actual innocence issue before this court that 10 [he] has collaterally attacked within the boundaries of the AEDPA standards in his 11 sentencing court, to no avail.” (Id. at 2.) 12 “A federal prisoner who seeks to challenge the legality of confinement must 13 generally rely on a § 2255 motion to do so.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th 14 Cir. 2012). “Under the ‘escape hatch’ provision of § 2255(e), however, a federal prisoner 15 may file a § 2241 petition, but only if the § 2255 remedy is ‘inadequate or ineffective to 16 test the legality of his detention.’” Shepherd v. Unknown Party, Warden, FCI Tucson, 5 17 F.4th 1075, 1076 (9th Cir. 2021) (quoting 28 U.S.C. § 2255(e)). “[T]he escape hatch is 18 available when the prisoner ‘(1) makes a claim of actual innocence, and (2) has not had an 19 unobstructed procedural shot at presenting that claim.’” Id. (quoting Marrero, 682 F.3d at 20 1192). 21 The Antiterrorism and Effective Death Penalty Act (AEDPA), bars second or 22 successive § 2255 petitions unless they rely on either “newly discovered evidence that, if 23 proven and viewed in light of the evidence as a whole, would be sufficient to establish by 24 clear and convincing evidence that no reasonable factfinder would have found the movant 25 guilty of the offense,” or “a new rule of constitutional law, made retroactive to cases on 26 collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. 27 § 2255(h). Prior to the Supreme Court’s recent decision in Jones, several courts of appeals 28 “found a workaround” to the § 2255(h) bar, in the saving clause of § 2255(e); these courts 1 held that § 2255 “was ‘inadequate and ineffective’ under the saving clause—and that 2 § 2241 was therefore available—when AEDPA’s second-or-successive restrictions barred 3 a prisoner from seeking relief based on a newly adopted narrowing interpretation of a 4 criminal statute that circuit precedent had foreclosed at the time of the prisoner’s trial, 5 appeal, and first § 2255 motion.” Jones, 599 U.S. 465 at 477. However, in Jones, the 6 Supreme Court made clear that section 2255(e)’s saving clause does not authorize this 7 “end-run” around § 2255(h)’s limitation. Id. The court stated that § 2255(h) specifies the 8 two limited conditions in which Congress has permitted federal prisoners to bring second 9 or successive collateral attacks on their sentences. Id. at 480. The court held that the 10 inability of a prisoner with a statutory claim to satisfy the section 2255(h) conditions does 11 not mean that a prisoner can bring his claim in a habeas petition under the saving clause. Id. 12 “The limitation on second or successive motions does not make § 2255 ‘inadequate or 13 ineffective’ such that the prisoner may proceed with his statutory claim under § 2241.” Id. 14 at 470. As a result of the Supreme Court’s holding, Bates cannot establish that the Hillie 15 decision is “a new rule of constitutional law” that would allow him to avoid § 2255(h)’s 16 bar. 17 In his objection, Bates now asserts that the § 2255(e) “escape hatch” is available to 18 him because he is actually innocent and has no adequate remedy to establish his innocence 19 as the sentencing court refused to produce evidence he needs to attack his conviction. (Doc. 20 25 at 2.) He appears to suggest that new evidence would establish his innocence. (Id. at 21 4–6.) Further, he argues that his plea was based upon a promise of time served by his 22 counsel. (Id.) These are new arguments, which the Court need not consider. See Lang v. 23 Comm’r of SSA, 2023 U.S. Dist. LEXIS 37965,*10–11 (D. Ariz. March 7, 2023) (“a party 24 generally may not raise new arguments for the first time in an objection to an R&R”). 25 However, even if considered, Bates fails to show “inadequate or ineffective” circumstances 26 which would fall within the § 2255(e)’s savings clause and avoid § 2255(h)’s bar. 27 Bates does not identify newly discovered evidence which would provide a basis for 28 a successive collateral attack. Moreover, Bates has not and cannot show that it is 1 impossible or impracticable for him to seek relief in the Western District of Arkansas. That 2 court’s alleged “refusal to produce evidence supporting his conviction/detention,” does not 3 constitute “inadequate or ineffective” circumstances. In addition, the Court agrees with 4 Judge Kimmins’s rejection on the merits of Bates’s claim that Hillie establishes his 5 innocence. (Doc. 21 at 5, n.2.) Bates was convicted in the Eighth Circuit. This Court looks 6 to the law of the circuit of the conviction when reviewing the merits of a habeas petition, 7 and the Eighth Circuit has continued to use the same statutory interpretation that applied 8 to Bates when he was convicted. Bates acknowledged this law in his reply. (Doc. 17 at 7 9 (“Petitioner would in fact not be able to bring his claim today in the Eighth Circuit.”).) 10 For all of the above reasons, the Court will dismiss the Petition. 11 IV. Certificate of Appealability 12 Although Bates filed his Petition under § 2241, because the Petition raises a claim 13 of actual innocence, the Court has construed it as a second or successive § 2255 petition. 14 Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, in the event Bates files 15 an appeal, the Court declines to issue a certificate of appealability because reasonable 16 jurists would not find the Court’s procedural ruling debatable, and Bates has not made a 17 substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack 18 v. McDaniel, 529 U.S. 473, 484 (2000); Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 19 2001) (requiring certificate of appealability in § 2255 motions that are labeled as § 2241 20 motions). 21 Accordingly, 22 IT IS ORDERED: 23 (1) The Report and Recommendation (Doc. 21) is accepted. 24 (2) Petitioner’s Objection (Doc. 25) is overruled. 25 (3) Petitioner’s Amended § 2241 Petition (Doc. 4) is denied, and this case is 26 dismissed with prejudice. 27 . . . . 28 . . . . 1 (4) A Certificate of Appealability shall not issue and leave to proceed in forma 2 pauperis on appeal is denied. 3 (5) The Clerk shall enter judgment accordingly and close this case. 4 Dated this 26th day of January, 2024. 5 6 . 7 /, Jennifer G. Zi 8 j United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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