Johnson v. Blanckensee ( 2021 )


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  • 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Charles M Johnson, Jr., No. CV-20-00396-TUC-JCH 10 Petitioner, ORDER 11 v. 12 B Von Blanckensee, 13 Respondent. 14 15 Before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Leslie A. Bowman recommending this Court deny Petitioner’s amended 17 habeas petition filed pursuant to 28 U.S.C. § 2241. (Doc. 14.) No party objected to the 18 Report and Recommendation and the time to object has expired. See Dkt. The Court will 19 not 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 Petitioner claims that the trial court failed to set a schedule for payment of 26 restitution, and it may not delegate its duty to the BOP. (Doc. 6.) He claims that he is 27 improperly being required to pay the financial penalties ordered by the trial court at his 28 sentencing through the Bureau of Prisons’ (BOP) Inmate Financial Responsibility 1 Program. (Doc. 14 at 2; Doc. 6 at 4.) 2 The Report and Recommendation sets forth the applicable statutes, regulations and 3 rules governing the procedures for court ordered payment of restitution. See Doc. 14 at 4. 4 Magistrate Judge Bowman examined the sentencing order in Petitioner’s case and 5 concluded that the district court considered Petitioner’s ability to pay, determined that a 6 payment schedule was unnecessary, and made restitution payable immediately. Id. The 7 Report and Recommendation explains that Petitioner did not pay the entire penalty 8 immediately and the BOP instituted a payment plan in accordance with its administrative 9 rules to encourage Petitioner to pay the court ordered restitution in installments. Id. at 5. 10 The Court concludes that Magistrate Judge Bowman’s recommendations are not 11 clearly erroneous, and they are adopted. 12 Before Petitioner can appeal this Court's judgment, a certificate of appealability 13 must issue. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). Federal Rule of 14 Appellate Procedure 22(b) requires the district court that rendered the judgment denying 15 the petition to either issue a certificate of appealability or state why a certificate should not 16 issue. Fed. R. App. P. 22. 17 A certificate of appealability may issue "only if the applicant has made a substantial 18 showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In the certificate, 19 the court must indicate which specific issues satisfy this showing. 28 U.S.C. § 2253(c)(3). 20 A substantial showing is made when the resolution of an issue on appeal is debatable 21 among reasonable jurists, if courts could resolve the issue differently, or if the issue 22 deserves further proceedings. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 23 Resolution of the issues raised in Petitioner’s amended petition are not debatable 24 among reasonable jurists and do not deserve further proceedings. Considering the standards 25 for granting a certificate of appealability, the Court concludes that a certificate shall not 26 issue. 27 Accordingly, 28 IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 14) is 1 || accepted and adopted. Petitioner’s § 2241 amended habeas petition (Doc. 6) is denied 2|| and this case is dismissed with prejudice. 3 IT IS FURTHER ORDERED that a certificate of appealability is denied. The Clerk of the Court is directed to enter judgment accordingly and close this case. 5 Dated this 8th day of February, 2021. 6 7 □ 8 9S MH herb onorable John C. Hinderaker 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-

Document Info

Docket Number: 4:20-cv-00396

Filed Date: 2/9/2021

Precedential Status: Precedential

Modified Date: 6/19/2024