United States District Court, D. New Mexico
ORDER OVERRULING DEFENDANT'S OBJECTIONS AND
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
MATTER is before the Court on
Defendant/Petitioner's Objections to Proposed Findings
and Recommended Disposition, filed October 31, 2017. (Doc.
10.) In her Proposed Findings and Recommended Disposition
(“PFRD”), filed October 10, 2017, United States
Magistrate Judge Kirtan Khalsa proposed to find that
Defendant is not entitled to relief pursuant to 28 U.S.C.
§ 2255 because, contrary to Defendant's argument in
support of his Section 2255 Motion (Doc. 1), his predicate
felony of unarmed bank robbery based on “force,
violence and intimidation” fits the definition of a
“crime of violence” under the force clause of the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
(Doc. 10 at 1, 10) Accordingly, Judge Khalsa recommended that
the Court deny Defendant's Section 2255 Motion and
dismiss his claims with prejudice. (Doc. 10 at 10.)
Defendant's objections to the PFRD, now before the Court,
are not well taken and shall be overruled.
courts may refer dispositive motions to a magistrate judge
for a recommended disposition pursuant to 28 U.S.C. §
636 and Federal Rule of Civil Procedure 72. 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days
after being served with a copy of the [magistrate
judge's] recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C.
§ 636(b)(1). When resolving objections to a magistrate
judge's proposal, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).
party's objections to the magistrate judge's report
and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court or
for appellate review.” United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996). Further, “[i]ssues raised for the first time in
objections to the magistrate judge's recommendation are
deemed waived.” Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996); see also United
States v. Garfinkle, 261 F.3d 1030, 1031
(10th Cir. 2001) (“In this circuit, theories
raised for the first time in objections to the magistrate
judge's report are deemed waived.”).
Court has considered Defendant's Section 2255 Motion, the
Magistrate Judge's PFRD, and Defendant's Objections
in light of the foregoing standards, and has conducted a
de novo review. Based on this review, the Court
finds that Defendant's Objections to the Magistrate
Judge's PFRD are unfounded. In his Objections, Defendant
invokes the definition of “intimidation, ” taken
from various dictionaries, to demonstrate that, in the common
parlance, the definition of “intimidation” does
not include the use or threatened use of force nor does it
include reasonable fear as a result of the use or threatened
use of force. (Doc. 10 at 2-3.) As demonstrated in the PFRD,
however, the term “intimidation” is defined in
the Tenth Circuit Criminal Pattern Jury Instructions, and the
legal meaning of that term has been analyzed in a number of
judicial opinions, thereby obviating the need for, and the
persuasive value of, an examination of the dictionary to
discern the meaning of that term in the context of the ACCA.
(Doc. 8 at 7-9.) Defendant, having identified no binding or
persuasive authority demonstrating error in the Magistrate
Judge's analysis, has not persuaded the Court that the
PFRD should be modified, rejected, or returned to Judge
Khalsa for further analysis.
short, following its de novo review, the Court finds
no fault with Judge Khalsa's PFRD, and discerns nothing
that might usefully be added to it. Thus, rather than repeat
what the Magistrate Judge has already written, the Court
hereby ADOPTS the Magistrate Judge's PFRD and OVERRULES
of the Rules Governing Section 2255 Proceedings For the
United States District Courts provides that “[t]he
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To be entitled to a certificate of
appealability, an applicant must make “a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could
disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 327 (2003). For the reasons explained in the
Magistrate Judge's PFRD and this Order, the Court finds
that reasonable jurists could not debate this Court's
denial of Defendant's § 2255 motion and, therefore,
a certificate of appealability will be denied.
IS THEREFORE ORDERED that:
1. Defendant's Motion to Correct Sentence Pursuant to 28
U.S.C. § 2255 (Doc. 1.) is DENIED.
2. This Matter is DISMISSED with prejudice.
3. A certificate of appealability is DENIED.