From Casetext: Smarter Legal Research

United States v. Colwell

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Mar 23, 2020
No. 2:12-cr-00073-TLN-CKD (E.D. Cal. Mar. 23, 2020)

Opinion

No. 2:12-cr-00073-TLN-CKD

03-23-2020

UNITED STATES OF AMERICA, Respondent, v. PHILLIP J. COLWELL, Movant.


ORDER

Phillip J. Colwell ("Movant"), a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 85.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On October 30, 2019, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. (ECF No. 112.) Movant filed objections to the findings and recommendations (ECF No. 116), Defendant United States of America (the "Government") filed a response to the objections (ECF No. 119), and Movant filed a reply (ECF No. 123).

This Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

Movant objects to the recommendation that his motion be denied on five bases: (1) defense counsels' failure to file a motion to suppress subsequent to the finding in Riley v. California, 573 U.S. 373 (2014), decided after Movant's plea but prior to sentencing, is sufficient to show ineffectiveness; (2) the Government failed to produce a number of categories of material in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) pre-plea claims should be considered despite his subsequent guilty plea; (4) Movant did not waive his ineffective assistance of counsel claims; and (5) a hearing should be held to determine if Movant's sentence needs to be reconsidered pursuant to Dimaya v. Sessions, 138 S. Ct. 1204 (2018). The Court finds Movant's objections to be unavailing. Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge's analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed October 30, 2019 (ECF No. 112), are adopted in full;

2. Movant's amended motion to vacate, set aside or correct his sentence (ECF No. 85) is DENIED;

3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253; and

4. The Clerk of the Court is directed to close the companion civil case, No. 2: 15-cv-2427-TLN-CKD, and to enter judgment in favor of Respondent. /// /// ///

IT IS SO ORDERED. Dated: March 23, 2020

/s/_________

Troy L. Nunley

United States District Judge


Summaries of

United States v. Colwell

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
Mar 23, 2020
No. 2:12-cr-00073-TLN-CKD (E.D. Cal. Mar. 23, 2020)
Case details for

United States v. Colwell

Case Details

Full title:UNITED STATES OF AMERICA, Respondent, v. PHILLIP J. COLWELL, Movant.

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Mar 23, 2020

Citations

No. 2:12-cr-00073-TLN-CKD (E.D. Cal. Mar. 23, 2020)