Arthur v. United States ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Elijah L oren Arthur, Sr., ) No. CV-20-00452-PHX-SPL (MHB) ) No. CR-14-00848-PHX-SPL 9 ) 10 Movant, ) v. ) 11 ) ) ORDER 12 United States of America, ) ) 13 Respondent. ) ) 14 ) 15 At issue is the Report and Recommendation (Doc. 6) (“R&R”) entered in this matter 16 by Magistrate Judge Michelle H. Burns. Magistrate Judge Burns has recommended that 17 the Motion of Mr. Arthur be denied and dismissed with prejudice in both matters CV-20- 18 00452 and CR-14-00848. 19 The Court has before it, Movant’s Motion to Vacate, Set Aside, or Correct Sentence 20 pursuant to 28 U.S.C. § 2255 (Doc. 1), Response to Movant’s Motion from the 21 Respondents (Doc. 4) and the Movant’s Reply. (Doc. 5) Additionally, the Court is in 22 receipt of the Report and Recommendation of the Magistrate Judge (Doc. 6), Movant’s 23 Objections (Doc. 9) and the Response to the Movant’s Objections from the Respondents 24 (Doc. 10). 25 A district judge “may accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a 27 timely objection to an R&R, the district judge reviews de novo those portions of the R&R 28 that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 1 specific written objections to the findings and recommendations in the R&R. See United 2 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It 3 follows that the Court need not conduct any review of portions to which no specific 4 objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 5 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 6 economy). Further, a party is not entitled as of right to de novo review of evidence or 7 arguments which are raised for the first time in an objection to the R&R, and the Court’s 8 decision to consider them is discretionary. United States v. Howell, 231 F.3d 615, 621-622 9 (9th Cir. 2000). 10 The Court has carefully undertaken an extensive review of the sufficiently 11 developed record. The Movant’s objections to the findings and recommendations have 12 been thoroughly considered. 13 After conducting a de novo review of the issues and objections, the Court reaches 14 the same conclusions reached by Judge Burns. This Court finds Judge Burns has correctly 15 concluded that trial counsel was not ineffective in the representation of the Movant. 16 Furthermore, the Court also finds the insufficient evidence claim from the Movant is 17 procedurally defaulted. The R&R will be adopted in full. Accordingly, 18 IT IS ORDERED: 19 1. That the Magistrate Judge’s Report and Recommendation (Doc. 6) is 20 accepted and adopted by the Court; 21 2. That the Movant’s Objections (Doc. 9) are overruled; 22 3. That the Motion to Vacate, Set Aside, or Correct the Sentence pursuant to 28 23 U.S.C. § 2255 (Doc. 1) 20-CV-00452 and related matter 14-CR-00848 are denied and 24 dismissed with prejudice; 25 4. That a Certificate of Appealability and leave to proceed in forma pauperis 26 on appeal are denied finding that Mr. Arthur has not made a substantial showing of the 27 denial of a Constitutional right; and 28 1 5. That the Clerk of Court shall enter judgment accordingly and terminate this 2 action. 3 Dated this 14" day of January 2021. 4 6 United States District kadge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28