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United States v. Roibal-Bradley

United States District Court, D. New Mexico

October 31, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JUANITA ROIBAL-BRADLEY, Defendant.

          Juanita Roibal-Bradley Palm Springs, California Plaintiff pro se

          John C. Anderson United States Attorney Holland S. Kastrin Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on: (i) the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence, filed November 15, 2018 (CIV Doc. 1)(“Motion”); (ii) the Petitioner's Motion for Home Confinement and Motion for Furlough to Attend Court Hearings, filed November 20, 2018 (CIV Doc. 3)(“Confinement Motion”); (iii) the Petitioner's Motion to Appoint Counsel, filed November 27, 2018 (CIV Doc. 6)(“Counsel Motion”); (iv) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed September 25, 2019 (CIV Doc. 17)(“PFRD”); (v) the Petitioner's Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition, filed October 10, 2019 (CIV Doc. 18)(“Objections”); and (vi) the United States' Response to Petitioner's Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition, filed October 15, 2019 (CIV Doc. 19)(“Response”). Having reviewed the decision of the Honorable Jerry H. Ritter, United States Magistrate Judge for the District of New Mexico, Defendant Juanita Roibal-Bradley's Objections, and Plaintiff United States of America's Response, the Court overrules Roibal-Bradley's Objections and adopts the PFRD in full.

         FACTUAL BACKGROUND

         On September 10, 2015, Roibal-Bradley was indicted on: (i) one count of Social Security fraud, in violation of 42 U.S.C. § 408(a)(4)(1); (ii) twelve counts of wire fraud, in violation of 18 U.S.C. § 1343 (2008); and (iii) ten counts of money laundering, in violation of 18 U.S.C. § 1957 (2012)(CR Doc. 1).

         On February 2, 2016, Roibal-Bradley pled guilty to: (i) one count of failure to disclose an event affecting the continued right to Social Security benefits payments and (ii) twelve counts of wire fraud. See Motion at 29. The Court accepted the Plea Agreement, filed February 2, 2016 (CR. Doc. 29), on September 12, 2016. See Clerk's Minutes at 1 (CR Doc. 55). On December 5, 2016, the Court held a restitution hearing on the United States' recommendation that Roibal-Bradley be ordered to pay restitution for fees incurred in the retrieval of the funds she fraudulently obtained, see Clerk's Minutes at 1, filed December 5, 2016 (CR Doc. 93), and the Court accepted the recommendation as to restitution. On March 8, 2017, the Court entered judgment, sentencing Roibal-Bradley to concurrent 37-month imprisonment terms, and ordering that she pay restitution to the Social Security Administration (“SSA”) and to the fraud victims. See Judgment in a Criminal Case at 3-4, filed March 8, 2017 (CR Doc. 95).[1]

         Roibal-Bradley filed her Motion, asserting that she received ineffective assistance of counsel at various stages of her plea negotiations, sentencing, and disciplinary proceedings before the state bar. See Memorandum in Support of Motion Pursuant to § 2255 at 13-35, filed November 15, 2018 (CIV Doc. 2). Roibal-Bradley subsequently filed the Confinement Motion and the Counsel Motion. In the PFRD, Magistrate Judge Ritter addresses, and rejects, Roibal-Bradley's ineffective assistance of counsel claims as well as her arguments in favor of home confinement and request for a hearing. See PFRD at 20.

         Roibal-Bradley's sole objection challenges Magistrate Judge Ritter's conclusion that her claim of ineffective assistance of counsel relative to the issue of restitution is not cognizable under § 2255. See PFRD at 14-16. Ultimately, the Court agrees with Magistrate Judge Ritter's conclusion in this regard and overrules Roibal-Bradley's objections.

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District courts may refer dispositive motions to a Magistrate Judge for a recommended disposition. See Fed.R.Civ.P. 72(b)(1) (“A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense . . . .”). Rule 72(b)(2) governs objections: “Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” When resolving objections to a Magistrate Judge's proposal, “the 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). Similarly, 28 U.S.C. § 636 provides:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1)(C).

         “The filing of objections to a magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute.” United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the United States Court of Appeals for the Tenth Circuit has noted, “the filing of objections advances the interests that underlie the Magistrate's Act, [2] including judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).

         The Tenth Circuit has held “that a 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.” One Parcel, 73 F.3d at 1060. “To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have adopted ‘a firm waiver rule' that ‘provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.'” One Parcel, 73 F.3d at 1059 (quoting Moore v. United States, 950 F.3d 656, 659 (10th Cir. 1991)). In addition to requiring specificity in objections, the Tenth Circuit has stated that “[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 United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)(“In this circuit, theories raised for the first time in objections to the magistrate judge's report ...


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