Opinion
No. CV-17-01708-PHX-NVW (ESW) CR-14-00355-PHX-NVW
09-09-2019
United States of America, Plaintiff/Respondent, v. Gregory Lynn Shrader, Defendant/Movant.
ORDER
Pending before the court is the Report and Recommendation ("R&R") of Magistrate Judge Eileen S. Willett (Doc. 50) regarding Movant's Second Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 10). The R&R recommends that Grounds One through Four and Six through Eight be dismissed with prejudice. The R & R further recommends that Ground Five be denied as none of the claims therein have merit. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R at 11 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72.) Petitioner's several attempts to file objections of 85 to 89 pages were denied as exceeding the 17-page limit on motions, Local Rule LRCiv 7.2(e), without justification. The Court examined the proposed overlength objections and found each to be unjustified, or even unintelligible. Each time the Court granted Petitioner more time to submit a rule-compliant brief. Petitioner's document filed September 6, 2019 (Doc. 67), though not titled as objections to the Report and Recommendation, have been examined and considered as such. Document 67 is largely unintelligible.
The Court will overrule any objections by Petitioner and adopt the R & R and will accept the R&R and deny the 28 U.S.C. § 2255 Motion. See 28 U.S.C. § 636(b)(1) (stating that the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate").
IT IS THEREFORE ORDERED that Report and Recommendation of the Magistrate Judge (Doc. 50) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying Movant's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 10). The Clerk shall terminate this action.
A certificate of appealability will be denied because (i) the dismissal of Grounds One through Four and Six through Eight are justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable and (ii) Movant has not made a substantial showing of the denial of a constitutional right with respect to the claims presented in Grounds Five. Petitioner has not shown that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Dated: September 9, 2019.
/s/_________
Neil V. Wake
Senior United States District Judge