1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jahmal Green, No. CV 22-131-TUC-JAS (LCK)
10 Petitioner, ORDER
11 v.
12 Warden of USP-Tucson,
13 Respondent. 14 15 DISCUSSION 16 As a threshold matter, the record reflects that after all the briefing, Report and 17 Recommendation, objections, and response thereto were completed in this case (see Docs. 18 1 through 22), the United States Supreme Court issued an opinion that impacts the issues 19 in this case. See Jones v. Hendrix, 599 U.S. 465 (2023). A review of the relevant record, 20 authority, and particularly Jones reflects that Jones forecloses any relief in this case for 21 Petitioner, and therefore Petitioner’s § 2241 Petition denied. See Jones, 599 U.S. 465, 476- 22 480 (2023) (“We now hold that the saving clause does not authorize such an end-run around 23 AEDPA. In § 2255(h), Congress enumerated two—and only two—conditions in which a 24 second or successive § 2255 motion may proceed. Because § 2255 is the ordinary vehicle 25 for a collateral attack on a federal sentence, the straightforward negative inference from § 26 2255(h) is that a second or successive collateral attack on a federal sentence is not 27 authorized unless one of those two conditions is satisfied . . . Even more directly, § 28 2255(h)(2)’s authorization of a successive collateral attack based on new rules ‘of 1 constitutional law’ implies that Congress did not authorize successive collateral attacks 2 based on new rules of nonconstitutional law. Had Congress wished to omit the word 3 ‘constitutional,’ it easily could have done so . . . Here, as often is the case, the best 4 interpretation is the straightforward one. Section 2255(h) specifies the two limited 5 conditions in which Congress has permitted federal prisoners to bring second or successive 6 collateral attacks on their sentences. The inability of a prisoner with a statutory claim to 7 satisfy those conditions does not mean that he can bring his claim in a habeas petition under 8 the saving clause. It means that he cannot bring it at all. Congress has chosen finality over 9 error correction in his case.”) (emphasis in the original). 10 In the alternative, assuming arguendo, that Jones did not impact the issues in this 11 case, the Court also agrees with the Report and Recommendation that Petitioner’s § 2241 12 Petition must be denied as discussed therein. The Court has reviewed the entire record in 13 this case (see Docs. 1 through 22) and the relevant legal authority bearing on this case. As 14 noted above, Petitioner filed objections to the Report and Recommendation and the 15 Government responded to those objections.1 16 As a threshold matter, as to any new evidence, arguments, and issues that were not 17 timely and properly raised before United States Magistrate Judge Kimmins, the Court 18 exercises its discretion to not consider those matters and considers them waived.2 See 19 United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has 20 discretion, but is not required, to consider evidence presented for the first time in a party's
21 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 22 2 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 23 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 24 the Court. See United States v. Ramos, 65 F.4th 427, 435 n. 5 (9th Cir. 2023) (“Ramos's motion for reconsideration argued that the district court failed to conduct de novo review 25 because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the Court exercises its 26 discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses the point. 27 The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's proper 28 analysis in recommending denial of the motion to suppress.”). 1 objection to a magistrate judge's recommendation . . . [I]n making a decision on whether 2 to consider newly offered evidence, the district court must . . . exercise its discretion . . . 3 [I]n providing for a de novo determination rather than de novo hearing, Congress intended 4 to permit whatever reliance a district judge, in the exercise of sound judicial discretion, 5 chose to place on a magistrate judge's proposed findings and recommendations . . . The 6 magistrate judge system was designed to alleviate the workload of district courts . . . To 7 require a district court to consider evidence not previously presented to the magistrate judge 8 would effectively nullify the magistrate judge's consideration of the matter and would not 9 help to relieve the workload of the district court. Systemic efficiencies would be frustrated 10 and the magistrate judge's role reduced to that of a mere dress rehearser if a party were 11 allowed to feint and weave at the initial hearing, and save its knockout punch for the second 12 round . . . Equally important, requiring the district court to hear evidence not previously 13 presented to the magistrate judge might encourage sandbagging. [I]t would be 14 fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait 15 to see which way the wind was blowing, and—having received an unfavorable 16 recommendation—shift gears before the district judge.”); United States v. Reyna-Tapia, 17 328 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying 18 purpose of the Federal Magistrates Act is to improve the effective administration of 19 justice.”). 20 Assuming that there has been no waiver, the Court has conducted a de novo review 21 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 22 being served with [the Report and Recommendation], any party may serve and file written 23 objections to such proposed findings and recommendations as provided by rules of court. 24 A judge of the court shall make a de novo determination of those portions of the report or 25 specified proposed findings or recommendations to which objection is made. A judge of 26 the court may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge. The judge may also receive further 28 evidence or recommit the matter to the magistrate judge with instructions.”). 1 In addition to reviewing the Report and Recommendation and any objections and 2 responsive briefing thereto, the Court’s de novo review includes review of the record and 3 authority before United States Magistrate Judge Kimmins which led to the Report and 4 Recommendation in this case. 5 Upon de novo review of the record and pertinent authority, the Court finds 6 Petitioner’s objections to be without merit, rejects those objections, and adopts United 7 States Magistrate Judge Kimmins’ Report and Recommendation.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jahmal Green, No. CV 22-131-TUC-JAS (LCK)
10 Petitioner, ORDER
11 v.
12 Warden of USP-Tucson,
13 Respondent. 14 15 DISCUSSION 16 As a threshold matter, the record reflects that after all the briefing, Report and 17 Recommendation, objections, and response thereto were completed in this case (see Docs. 18 1 through 22), the United States Supreme Court issued an opinion that impacts the issues 19 in this case. See Jones v. Hendrix, 599 U.S. 465 (2023). A review of the relevant record, 20 authority, and particularly Jones reflects that Jones forecloses any relief in this case for 21 Petitioner, and therefore Petitioner’s § 2241 Petition denied. See Jones, 599 U.S. 465, 476- 22 480 (2023) (“We now hold that the saving clause does not authorize such an end-run around 23 AEDPA. In § 2255(h), Congress enumerated two—and only two—conditions in which a 24 second or successive § 2255 motion may proceed. Because § 2255 is the ordinary vehicle 25 for a collateral attack on a federal sentence, the straightforward negative inference from § 26 2255(h) is that a second or successive collateral attack on a federal sentence is not 27 authorized unless one of those two conditions is satisfied . . . Even more directly, § 28 2255(h)(2)’s authorization of a successive collateral attack based on new rules ‘of 1 constitutional law’ implies that Congress did not authorize successive collateral attacks 2 based on new rules of nonconstitutional law. Had Congress wished to omit the word 3 ‘constitutional,’ it easily could have done so . . . Here, as often is the case, the best 4 interpretation is the straightforward one. Section 2255(h) specifies the two limited 5 conditions in which Congress has permitted federal prisoners to bring second or successive 6 collateral attacks on their sentences. The inability of a prisoner with a statutory claim to 7 satisfy those conditions does not mean that he can bring his claim in a habeas petition under 8 the saving clause. It means that he cannot bring it at all. Congress has chosen finality over 9 error correction in his case.”) (emphasis in the original). 10 In the alternative, assuming arguendo, that Jones did not impact the issues in this 11 case, the Court also agrees with the Report and Recommendation that Petitioner’s § 2241 12 Petition must be denied as discussed therein. The Court has reviewed the entire record in 13 this case (see Docs. 1 through 22) and the relevant legal authority bearing on this case. As 14 noted above, Petitioner filed objections to the Report and Recommendation and the 15 Government responded to those objections.1 16 As a threshold matter, as to any new evidence, arguments, and issues that were not 17 timely and properly raised before United States Magistrate Judge Kimmins, the Court 18 exercises its discretion to not consider those matters and considers them waived.2 See 19 United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has 20 discretion, but is not required, to consider evidence presented for the first time in a party's
21 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 22 2 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 23 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 24 the Court. See United States v. Ramos, 65 F.4th 427, 435 n. 5 (9th Cir. 2023) (“Ramos's motion for reconsideration argued that the district court failed to conduct de novo review 25 because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the Court exercises its 26 discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses the point. 27 The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's proper 28 analysis in recommending denial of the motion to suppress.”). 1 objection to a magistrate judge's recommendation . . . [I]n making a decision on whether 2 to consider newly offered evidence, the district court must . . . exercise its discretion . . . 3 [I]n providing for a de novo determination rather than de novo hearing, Congress intended 4 to permit whatever reliance a district judge, in the exercise of sound judicial discretion, 5 chose to place on a magistrate judge's proposed findings and recommendations . . . The 6 magistrate judge system was designed to alleviate the workload of district courts . . . To 7 require a district court to consider evidence not previously presented to the magistrate judge 8 would effectively nullify the magistrate judge's consideration of the matter and would not 9 help to relieve the workload of the district court. Systemic efficiencies would be frustrated 10 and the magistrate judge's role reduced to that of a mere dress rehearser if a party were 11 allowed to feint and weave at the initial hearing, and save its knockout punch for the second 12 round . . . Equally important, requiring the district court to hear evidence not previously 13 presented to the magistrate judge might encourage sandbagging. [I]t would be 14 fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait 15 to see which way the wind was blowing, and—having received an unfavorable 16 recommendation—shift gears before the district judge.”); United States v. Reyna-Tapia, 17 328 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying 18 purpose of the Federal Magistrates Act is to improve the effective administration of 19 justice.”). 20 Assuming that there has been no waiver, the Court has conducted a de novo review 21 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 22 being served with [the Report and Recommendation], any party may serve and file written 23 objections to such proposed findings and recommendations as provided by rules of court. 24 A judge of the court shall make a de novo determination of those portions of the report or 25 specified proposed findings or recommendations to which objection is made. A judge of 26 the court may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge. The judge may also receive further 28 evidence or recommit the matter to the magistrate judge with instructions.”). 1 In addition to reviewing the Report and Recommendation and any objections and 2 responsive briefing thereto, the Court’s de novo review includes review of the record and 3 authority before United States Magistrate Judge Kimmins which led to the Report and 4 Recommendation in this case. 5 Upon de novo review of the record and pertinent authority, the Court finds 6 Petitioner’s objections to be without merit, rejects those objections, and adopts United 7 States Magistrate Judge Kimmins’ Report and Recommendation. See, e.g., United States 8 v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 9 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 10 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 11 as a sign that he has not received his due. Yet we see no reason to infer abdication from 12 adoption. On occasion this court affirms a judgment on the basis of the district court's 13 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 14 rather, that after independent review we came to the same conclusions as the district judge 15 for the reasons that judge gave, rendering further explanation otiose. When the district 16 judge, after reviewing the record in the light of the objections to the report, reaches the 17 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 18 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 19 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 20 is statutorily and constitutionally required when written objections to a magistrate's report 21 are timely filed with the district court . . . The district court's duty in this regard is satisfied 22 only by considering the actual testimony [or other relevant evidence in the record], and not 23 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 24 we presume the district court knew of these requirements, so the express references to de 25 novo review in its order must be taken to mean it properly considered the pertinent portions 26 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 27 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 28 brevity does not warrant look[ing] behind a district court's express statement that it engaged 1 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 2 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 3 granting of summary judgment . . . Murphy's contention that the district judge did not 4 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 5 brief order mentioned that objections had been made and overruled. We do not construe 6 the brevity of the order as an indication that the objections were not given due 7 consideration, especially in light of the correctness of that report and the evident lack of 8 merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) 9 (“When a party timely objects to a magistrate judge's report and recommendation, the 10 district court is required to make a de novo review of the record related to the objections, 11 which requires more than merely reviewing the report and recommendation . . . This court 12 presumes that the district court properly performs its review and will affirm the district 13 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 14 The burden is on the challenger to make a prima facie case that de novo review was not 15 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 16 district court judge did not review the magistrate's report de novo . . . There is no evidence 17 that the district court did not conduct a de novo review. Without any evidence to the 18 contrary . . . we will not assume that the district court did not conduct the proper review.”).3
19 3 See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (“the district court's assurance, in a written order, that the court has complied with the de novo review 20 requirements of the statute in reviewing the magistrate judge's proposed findings and recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on 21 appeal”; emphasizing that “[i]t is clear that Pinkston's argument in this regard is nothing more than a collateral attack on the magistrate's reasoning, masquerading as an assault on 22 the district court's entirely acceptable decision to adopt the magistrate's opinion . . .”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court's order 23 is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 72(b) requires the district court to make any specific findings; the district court must merely conduct a de 24 novo review of the record . . . It is common practice among district judges . . . to [issue a terse order stating that it conducted a de novo review as to objections] . . . and adopt the 25 magistrate judges' recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that 26 analysis. We cannot interpret the district court's [terse] statement as establishing that it failed to perform the required de novo review . . . We hold that although the district court's 27 decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate's recommendation de novo.”); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 28 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge's report and recommendations to which objections have been filed. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 (1) Petitioner’s § 2241 Petition is denied in light of Jones v. Hendrix, 599 U.S. 465 4 (2023). 5 (2) In the alternative, assuming arguendo, that Jones is inapplicable, United States 6 Magistrate Judge Kimmins’ Report and Recommendation (Doc. 20) is accepted and 7 adopted. 8 (3) Petitioner’s objections are rejected. 9 (4) Petitioner’s § 2241 Petition is denied. 10 (5) This case is dismissed with prejudice. 11 (6) The Clerk of the Court shall enter judgment and close the file in this case. 12 13 Dated this 12th day of March, 2025. 14 15 16 testes Honorable James A. Soto 19 United States District Judge 20 21 22 23 24 25 But this de novo determination is not the same as a de novo hearing . . . [I]f following a review of the record the district court is satisfied with the magistrate judge's findings and recommendations it may in its discretion treat those findings and recommendations as its 28 own.”).
-6-