Ford v. Von Blanckensee ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 James L Ford, No. CV-19-00036-TUC-RM 10 Petitioner, ORDER 11 v. 12 B. Von Blanckensee, 13 Respondent. 14 15 On January 24, 2019, Petitioner James L. Ford filed a Petition for Writ of Habeas 16 Corpus pursuant to 28 U.S.C. § 2241 (“Petition”). (Doc. 1.)1 After being granted an 17 extension of time to respond to the Petition (Doc. 12), Respondents filed an Answer on 18 August 15, 2019 (Doc. 14). On August 5, 2019, Petitioner filed a Motion for 19 Reconsideration of the Order granting Respondents an extension of time to answer (Doc. 20 13), and on August 22, 2019, he filed a Motion to Stay Proceedings (Doc. 15). On 21 November 7, 2019, Magistrate Judge Eric J. Markovich filed a Report and 22 Recommendation (Doc. 17), recommending that this Court deny the Petition on ripeness 23 grounds, without prejudice and with leave to re-file; deny Petitioner’s Motion for 24 Reconsideration as moot; and deny Petitioner’s Motion to Stay Proceedings. Petitioner 25 filed an Objection on December 2, 2019. (Doc. 18.) Respondents did not respond to 26 Petitioner’s Objection. 27 1 All record citations refer to the docket in CV 19-36-TUC-RM, unless otherwise 28 indicated, and refer to the page numbers generated by the Court’s electronic filing system. 1 I. Standard of Review 2 A district judge must “make a de novo determination of those portions” of a 3 magistrate judge’s “report or specified proposed findings or recommendations to which 4 objection is made.” 28 U.S.C. § 636(b)(1). The advisory committee’s notes to Rule 5 72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is 6 filed, the court need only satisfy itself that there is no clear error on the face of the record 7 in order to accept the recommendation” of a magistrate judge. Fed. R. Civ. P. 72(b) 8 advisory committee’s note to 1983 addition. See also Johnson v. Zema Sys. Corp., 170 9 F.3d 734, 739 (7th Cir. 1999) (“If no objection or only partial objection is made, the 10 district court judge reviews those unobjected portions for clear error.”); Prior v. Ryan, 11 CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. Ariz. Apr. 18, 2012) (reviewing for 12 clear error unobjected-to portions of Report and Recommendation). 13 II. Discussion 14 On November 28, 2018, Judge Cindy K. Jorgenson held a sentencing hearing in 15 United States of America v. James Lamar Ford, Jr., CR 18-261-CKJ (LAB) and a final 16 disposition hearing in United States of America v. James Lamar Ford, Jr., CR 16-355- 17 CKJ (LAB). In CR 18-261, Judge Jorgenson sentenced Petitioner to a 24-month term of 18 imprisonment, with credit for time served. (Doc. 40 in CR 18-261.) In CR 16-335, 19 Judge Jorgenson sentenced Petitioner to a 12-month term of imprisonment, to run 20 consecutive to the sentence in CR 18-261. (Docs. 102, 111 in CR 16-335.) The 21 Judgment issued in 16-335 originally specified that Petitioner was to receive credit for 22 time served (Doc. 102 in CR 16-335); however, Judge Jorgenson later granted a Motion 23 to Correct Judgment filed by the Government (see Docs. 106, 108 in CR 16-335) and 24 issued an Amended Judgment reflecting no credit for time served as to the revocation of 25 supervised release in CR 16-335 (Doc. 111 in CR 16-335). Petitioner appealed Judge 26 Jorgenson’s Order granting the Government’s Motion to Correct Judgment in CR 16-335, 27 and the appeal is currently pending in the Ninth Circuit Court of Appeals. (Docs. 109, 28 110 in CR 16-335.) 1 In the Petition filed in the above-captioned civil case, Petitioner asserts that the 2 Federal Bureau of Prisons miscalculated his release date by failing to give him credit for 3 time served on both the sentence in CR 18-261 and the consecutive sentence in CR 16- 4 335. (Doc. 1.) In his Report and Recommendation, Judge Markovich found that 5 Petitioner’s claims in the Petition are not ripe because the Ninth Circuit Court of Appeals 6 has not issued a decision on Petitioner’s appeal in CR 16-335. (Doc. 17 at 4-5.) 7 Accordingly, Judge Markovich recommends that this Court deny the Petition without 8 prejudice and with leave to re-file. (Id. at 5.) 9 In his Objection, Petitioner specifically notes that he does not object to Judge 10 Markovich’s recommendation that his Petition be dismissed without prejudice and with 11 leave to re-file. (Doc. 18 at 2.) However, Petitioner asks this Court to recognize that 12 Petitioner exhausted administrative remedies so that “in the event refiling becomes 13 necessary, this issue will not impede the progress” of the case. (Id.) 14 Judge Markovich’s Report and Recommendation does not make any findings 15 regarding exhaustion of administrative remedies, and any such findings would be 16 premature in light of Judge Markovich’s unobjected-to finding that the Petition is not ripe 17 for review. Accordingly, Petitioner’s Objection will be overruled to the extent it asks this 18 Court to make any findings regarding exhaustion of administrative remedies. 19 As Petitioner does not object to Judge Markovich’s finding that the Petition should 20 be dismissed without prejudice and with leave to re-file on ripeness grounds, the Court 21 has reviewed that finding for clear error, and has found none. Accordingly, the Report 22 and Recommendation will be adopted, the Petition will be dismissed without prejudice 23 and with leave to re-file, Petitioner’s Motion for Reconsideration will be denied as moot, 24 and Petitioner’s Motion to Stay Proceedings will be denied. 25 IT IS ORDERED that Petitioner’s Objection (Doc. 18) to Judge Markovich’s 26 Report and Recommendation is overruled. 27 IT IS FURTHER ORDERED that Judge Markovich’s Report and 28 Recommendation (Doc. 17) is accepted and adopted. 1 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 3|| leave to re-file. The Clerk of Court is directed to enter judgment accordingly and close 4|| this case. 5 IT IS FURTHER ORDERED that Petitioner’s Motion for Reconsideration (Doc. 6|| 13) is denied as moot. 7 IT IS FURTHER ORDERED that Petitioner’s Motion to Stay Proceedings (Doc. 8 || 15) is denied. 9 Dated this 10th day of January, 2020. 10 ul 12 a, 13 TD tigi □ □□ Honorable Rostsiary □□□□□□□ 14 United States District □□□□□ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-