United States District Court, D. New Mexico
Juanita Roibal-Bradley Palm Springs, California Plaintiff pro
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
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.
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).
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
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.
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
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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
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).
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,  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)).
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 ...