Allen v. Blanckensee ( 2019 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 John Scott Allen, ) ) 10 Petitioner, ) ) No. CIV 18-616-TUC-CKJ 11 vs. ) ) ORDER 12 Barbara von Blanckensee, Warden, ) ) 13 Respondent. ) ) 14 Pending before the Court is the Petition Under 28 U.S.C. § 2241 for a Writ of Habeas 15 Corpus by a Person in Federal Custody (Doc. 1) filed by Petitioner John Scott Allen 16 (“Allen”). 17 On June 26, 2019, Magistrate Judge Leslie Ann Bowman issued a Report and 18 Recommendation (Doc. 13) in which she recommended the Petition be denied on its merits. 19 The magistrate judge advised the parties that any written objections were to be served and 20 filed within 14 days of being served with a copy of the Report and Recommendation. No 21 objections to the Report and Recommendation have been filed. 22 The standard of review that is applied to a magistrate judge’s report and 23 recommendation is dependent upon whether a party files objections – the Court need not 24 review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 25 150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s 26 disposition that has been properly objected to. The district judge may accept, reject, or 27 modify the recommended disposition; receive further evidence; or return the matter to the 28 1 magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). 2 Nonetheless, “while the statute does not require the judge to review an issue de novo if no 3 objections are filed, it does not preclude further review by the district judge, sua sponte or 4 at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154. 5 The Court has reviewed and considered the Petition (Doc. 250), the Response (Doc. 6 12), and the Report and Recommendation (Doc. 13). In his first claim Allen asserts he was 7 not allowed to request witnesses or a staff representative and was not allowed to present 8 certain evidence including video surveillance recording and the other inmate’s mental health 9 issues. The magistrate judge determined the record does not support Allen’s claim. Further, 10 Allen has not shown he was prejudiced by any due process violation. Watkins v. Winn, 2013 11 WL 6823275, at *8 (D. Ariz. 2013) (“[E]ven if a prison official’s actions create a potential 12 due process violation, a habeas petitioner needs to demonstrate that he was harmed by the 13 violation in order to obtain relief.”); Lee v. Kramer, 2008 WL 4507584, at *4 (E.D. Cal. 14 2008) (“Petitioner has not shown prejudice resulting from the failure to call his potential 15 witnesses, or the failure to consider his witness list, as he has not shown what the witnesses’ 16 testimony would have been or that it would have been sufficient to rebut the eyewitness 17 account of correctional staff.”), report and recommendation adopted, 2008 WL 5246383 18 (E.D. Cal. 2008). 19 As to Allen’s second claim, in which he asserts he was not allowed to present his 20 defense of duress and self-defense, the magistrate judge determined this claim was not 21 supported by the evidence. Rather, Allen was permitted to present his defense and the 22 Disciplinary Hearing Officer did consider it. 23 After an independent review, the Court finds denial on the merits is appropriate.1 24 25 26 1The Court notes a certificate of appealability is not required in § 2241 cases filed by a person in federal custody. Close v. Thomas, 2011 WL 3319547 n. 2 (9th Cir. 2011) (citing 27 Forde v. U.S. Parole Comm'n, 114 F.3d 878, 879 (9th Cir.1997)). 28 1 Accordingly, IT IS ORDERED: 2 1. The Report and Recommendation (Doc. 13) is ADOPTED. 3 2. The Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person 4 || in Federal Custody (Doc. 1) is DENIED on the merits. 5 3. The Clerk of Court shall enter judgment and shall then close its file in this 6 || matter. 7 DATED this 22nd day of July, 2019. ° La KO c Jor eroeet 10 Cindy K. Jor§énso United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-