Gordon v. Baltazar

Opinion

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

9 Michael Lee Gordon, No. CV-18-00442-TUC-JCH

10 Petitioner, ORDER

11 v.

12 J. Baltazar,

13 Respondent. 14 15 Before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Bruce G. Macdonald recommending the district court deny Petitioner’s 17 habeas petition filed pursuant to 28 U.S.C. § 2241. (Doc. 26.) No party objected to the 18 Report and Recommendation and the time to object has expired. The Court will not 19 consider any objections or new evidence. 20 The Court reviews de novo any objected-to portions of the Report and 21 Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for 22 clear error any unobjected-to portions of the Report and Recommendation. Id. See also, 23 Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); Conley v. Crabtree, 14 24 F. Supp. 2d 1203, 1204 (D. Or. 1998). 25 Between October 31, 1997 and December 4, 1997, Petitioner was involved in seven 26 (7) armed robberies of commercial establishments. (Doc. 26 at 2.) He was charged with 27 seven (7) Hobbs Act violations pursuant to Section 1851, Title 18, United States Code, and 28 seven (7) additional counts for use of a firearm during the robberies pursuant to Section 1 924(c), Title 18, United States Code. (Doc. 26 at 2.) A trial resulted in convictions on all 2 14 counts. Id. He was sentenced to 137 years and six months because of the consecutive 3 nature of the punishment for § 924(c) violations. Id. 4 Petitioner unsuccessfully appealed his convictions to the United States Court of 5 Appeals for the Sixth Circuit raising, inter alia, a challenge to the application of the Hobbs 6 Act. Id. at 2-3. He subsequently filed several petitions seeking collateral relief. Id. at 3. In 7 the instant petition, Petitioner contests the legality of his sentence by challenging his seven 8 (7) convictions for use of a firearm during the robberies under § 924(c), arguing that 9 because its “residual clause is unconstitutionally vague, no legal basis exists for a 18 USC 10 924(c) conviction and sentence and he is ‘actually innocent.’” Id. at 7. 11 The Report and Recommendation sets forth Petitioner’s convictions, appeal, and 12 requests for collateral relief. See Doc. 26 at 2-4. Magistrate Judge Macdonald examined 13 this Court’s jurisdiction to hear the instant petition under the escape hatch provision of 14 Section 2255, Title 28, United States Code. Id. at 7-8. Magistrate Judge Macdonald 15 determined that Petitioner did not satisfy the “actual innocence” requirement of Section 16 2255’s escape hatch provision. Id. at 8-9. He also determined Petitioner did not satisfy the 17 “unobstructed procedural shot” requirement of Section 2255’s escape hatch provision. Id. 18 at 9-10. Thus, Judge Macdonald concluded that the district court lacks jurisdiction over the 19 instant petition. Id. at 12. 20 The magistrate judge examined whether transfer or dismissal of this action was 21 appropriate concluding that Petitioner did not meet the three criteria required for transfer 22 pursuant to 28 U.S.C. § 1631. Id. at 10-11. Thus, Judge Macdonald recommends dismissal 23 of the petition. Id. at 11. 24 The Report and Recommendation sets forth the applicable statutes and case law 25 governing collateral challenges and convictions under Section 924(c), Title 18, United 26 States Code. The Court concludes that Magistrate Judge Macdonald’s recommendations 27 are not clearly erroneous, and they are adopted. 28 … 1 Before Petitioner can appeal this Court's judgment, a certificate of appealability □□ must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). Federal Rule of || Appellate Procedure 22(b) requires the district court that rendered the judgment denying 4||_ the petition to either issue a certificate of appealability or state why a certificate should not 5 || issue. Fed. R. App. P. 22. 6 A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In the certificate, 8 || the court must indicate which specific issues satisfy this showing. 28 U.S.C. § 2253(c)(3). A substantial showing is made when the resolution of an issue on appeal is debatable □□ among reasonable jurists, if courts could resolve the issue differently, or if the issue 11 || deserves further proceedings. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 12 Resolution of the issues raised in the petition are not debatable among reasonable 13 || jurists and do not deserve further proceedings. Considering the standards for granting a certificate of appealability, the Court concludes that a certificate shall not issue. 15 Accordingly, 16 IT IS HEREBY ORDERED ACCEPTING AND ADOPTING the Report and 17 || Recommendation (Doc. 26). The habeas petition (Doc. 1) is denied and this case is 18 || dismissed with prejudice. 19 IT IS FURTHER ORDERED DENYING a certificate of appealability. The Clerk of the Court is directed to enter judgment accordingly and close this case. 21 Dated this 16th day of April, 2021. 22 23

24 WS herb onorable John C. Hinderaker 25 United States District Judge 26 27 28

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