Martinez v. United States

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Brandon Andrew Martinez, No. CV-19-01802-PHX-JJT (JZB) 10 Movant, ORDER v. United States of America., 13 Respondent.

15 At issue is the Report and Recommendation (Doc. 21) (“R&R”) submitted in this matter by United States Magistrate Judge John Z. Boyle, recommending the Court grant Movant’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1). The parties had 14 days from the date of the R&R’s entry to file any objections thereto; failure to timely file any objections is considered a waiver of [the non-objecting party’s] right to de novo consideration of the issues,” per United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), and a waiver if their right to appellate review of any findings of fact the Court makes in this Order pursuant to the R&R. (Doc. 21 at 7 - 8.)

23 The government filed no objections and the time to do so has now passed; it has therefore waived the above rights and the Court may accept the R&R without further review. However, the Court notes the government’s failure to file objections was not the product of neglect, but rather a conscious decision consistent with its affirmative withdrawal of its opposition to the Motion (Doc. 20). Nonetheless the Court independently || reviewed the matter, briefs and R&R, and upon so doing concludes that Judge Boyle’s || R&R and its underlying analysis is correct.

3 Movant did procedurally default by failing to raise the issue of whether he had prior felony convictions on direct appeal, but he is nonetheless eligible for relief under the || “actual innocence” gateway. As outlined in detail in Judge Boyle’s R&R, Ninth Circuit 6|| law developed the year after Movant’s sentencing in this matter, as reflected in United 7\| States v. Valencia-Mendoza, 913 F.3d 1215 (9th Cir. 2019), rendered Movant’s state || convictions not felonies for purposes of 18 U.S.C. § 922(g)(1). The elements of Section 9|| 922(g) therefore are not met and Movant is actually innocent of that charge. The Court will || thus vacate the Section 922(g)(1) conviction.

11 IT IS ORDERED adopting the Report and Recommendation (Doc. 21) and all of its || underlying reasoning.

13 IT IS FURTHER ORDERED granting Movant’s Motion to Vacate, Set Aside or || Correct Sentence under 28 U.S.C. § 2255 (Doc. 1) and vacating Movant’s conviction under 18 U.S.C. § 922(g)(1).

16 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter.

17 Dated this 4th day of May, 2020. CN iy.

Unifga StatesDistrict Judge -2-