Ross v. Bennett

Opinion

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4 5 UNITED STATES DISTRICT COURT AT TACOMA 7 BRET WILLIAM ROSS, Case No. 3:24-cv-05573-TMC 8 Plaintiff, ORDER ADOPTING REPORT AND 9 RECOMMENDATION v. 10 JASON BENNETT, 11 Defendant. 12 13

14 This Court, having reviewed the Report and Recommendation of Magistrate Judge Brian 15 A. Tsuchida, objections to the Report and Recommendation, if any, and the remaining record, 16 does hereby find and ORDER: 17 (1) The Court adopts the Report and Recommendation. 18 a. Petitioner has not filed any objections to the Report and Recommendation. 19 Petitioner did file, within the time for objections, a notice of supplemental 20 authority citing Erlinger v. United States, 144 S. Ct. 1840 (2024). Construing 21 this broadly as an objection, the Court has conducted de novo review of the 22 Report and Recommendation. Fed. R. Civ. P. 72(b); United States v. Reyna- 23 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the reasons 24 1 explained in the Report and Recommendation, the Court agrees with Judge 2 Tsuchida that the petition is untimely and the asserted ground for relief lacks 3 merit. Erlinger, which dealt with the Armed Career Criminal Act (ACCA) and

4 whether certain facts related to the predicate convictions that expose a 5 criminal defendant to an enhanced statutory maximum under ACCA must be 6 found by a jury beyond a reasonable doubt, see 144 S. Ct. at 1846–48, does 7 not change this result. As Judge Tsuchida explained, Petitioner’s sentence was 8 within the statutory range set by the legislature. Dkt. 4 at 7–8. 9 (2) The petition is dismissed with prejudice. 10 (3) Petitioner’s other pending motions and requests (Dkts. 1-5, 5-2, 5-3, 5-4, 6) are 11 denied as moot. 12 (4) A certificate of appealability is denied.

13 (5) The Clerk is directed to provide a copy of this Order to petitioner and to the 14 Honorable Brian A. Tsuchida. 15 Dated this 13th day of August, 2024. 16 A 17 Tiffany M. Cartwright 18 United States District Judge

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