Opinion
CV-20-00352-TUC-SHR (JR)
09-30-2022
Alfred Salazar, Petitioner, v. Barbara von Blanckensee, Respondent.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Before the Court is Petitioner Alfred Salazar's (“Petitioner”) Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1.) Pursuant to Local Rule 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Jacqueline Rateau for Report and Recommendation. (Doc. 6.) Respondent filed her combined Return and Answer to Petition For a Writ of Habeas Corpus Under 28 U.SC. § 2241 and Motion to Dismiss Petition. (Doc. 14.) Petitioner has not filed a reply and the time for filing a reply has passed.
As more fully set forth below, the Magistrate Judge recommends that the district court, after an independent review of the record, dismiss the Petition.
Unless otherwise indicated, all factual references are taken from the exhibits attached to Respondent's combined Return and Answer to Petition For a Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Motion to Dismiss Petition. (Doc. 14.)
On May 20, 2014, Petitioner was sentenced to 120 months incarceration and four years of supervised release for possession with the intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. 841(b)(1)(B). (Doc. 14-1 at p. 4, ¶ 8.) At the time he filed his Petition, Petitioner was incarcerated in the United States Penitentiary in Tucson, Arizona (“USP Tucson”). Id. According to the Bureau of Prison's (“BOP”) inmate locator website, Petitioner is currently housed at United States Prison-Canaan (USP Canaan”) in Waymart, Pennsylvania. See https://www.bop.gov/inmateloc/, last visited September 29, 2022. According to records provided by Respondent, as of November 3, 2020, Petitioner's projected release date is July 8, 2024. (Doc. 14-1 at p. 9.)
Petitioner did not file a notice of change of address as required by Rule 83.3 of the Local Rules of Civil Procedure and the district court's Order dated October 13, 2020. (Doc 6.) In its October 13, 2020 Order, the district court warned Petitioner that the failure to file and serve a notice of a change of address could result in the dismissal of this action. Id. at 2.
On June 8, 2020, an investigative staff member at USP Tucson issued Petitioner Incident Report (“IR”) No. 3405638 for introducing drugs/alcohol, phone and mail abuse (criminal), and exchanging money for contraband. (Doc. 14-2 at pp. 3-4, ¶ 8.) A lieutenant investigated the incident and noted that Petitioner declined to make a statement, was given a copy of the IR, was advised of his rights, and did not request any witnesses. Id. at p. 4, ¶ 9. The lieutenant forwarded the report to the Unit Disciplinary Committee (“UDC”) for further processing. Id. The UDC conducted a hearing on June 23, 2020, at which time Petitioner received notice of a Discipline Hearing Officer (“DHO”) hearing and of his rights during that hearing. Id. at p. 4, ¶ 10. Petitioner did not make a statement at the UDC hearing. Id. The UDC referred the charge to the DHO for further processing and hearing. Id.
The DHO convened the hearing on June 30, 2020. Id. at ¶ 11. Petitioner was present during the DHO hearing and declined staff representation. Id. The DHO confirmed that Petitioner received a copy of the IR and reviewed his due process rights. Id. During the hearing, Petitioner stated, “I'm guilty.” Id. at p. 5, ¶ 11. Petitioner declined to submit any documentary evidence or call any witnesses at the DHO hearing. Id. The DHO considered the IR, Petitioner's statement, and related documentary evidence in finding that Petitioner committed the prohibited acts of introduction of narcotics and use of the telephone for an illegal purpose. Id. at ¶¶ 12-13. Following a DHO re-hearing in August 2020, the DHO modified her findings and conclusions, imposing sanctions only for the introduction of narcotics and expunging the telephone abuse charge/sanctions. Id. at pp. 5-6, ¶¶ 16-20.
(investigative reports, photographs, photographs of video surveillance footage, and staff memoranda)
The DHO sanctioned Petitioner with a loss of visitation privileges, disciplinary segregation, and a loss of 41 days of good conduct time. Id. at p. 6, ¶ 20. On August 18, 2020, Petitioner received a copy of the DHO report which advised him of his right to appeal through the Administrative Remedy Program. Id. at p. 6, ¶ 21. Petitioner appealed the DHO's decision to the Regional Director (BP-10) through the Administrative Remedy Program, but prior to receiving the amended DHO report on August 18, 2020. (Doc. 14-1 at p. 5, ¶¶ 12-13.) Petitioner has not filed an appeal to the Office of General Counsel (BP-11) regarding IR 3405638. Id. at pp. 5-6, ¶ 14.
THE PETITION
Petitioner asserts three grounds for relief in his Petition. (Doc. 1.) In Ground One, Petitioner alleges that his Fifth Amendment rights were violated when the lieutenant failed to investigate; the reporting officer failed to write a report within 24 hours; the DHO failed to review exculpatory evidence, exhibited bias, and relied on a “secret SIS report”; Petitioner was not allowed to present evidence or call witnesses; and there was “no 28 CFR 541.6 evaluation” or evidence to support the charge. Id. at 4. In Ground Two, Petitioner alleges that his Fifth Amendment rights were violated because he did not receive a hearing during his “several months in SHU.” Id. at 5. In Ground Three, Petitioner alleges that his Fifth Amendment rights were violated because, while Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Respondent is “categorically excluding USP Tucson from home confinement,” and “BOP does not recognize COVID-19 under its [compassionate release] policy.” Id. at 6.
Petitioner seeks: (1) expungement of IR 3405638; (2) an order releasing him from the SHU; and (3) an order directing “Respondent to properly consider Petitioner for home confinement/compassionate release and to release him due to unconstitutional COVID-19 conditions.” Id. at 9. The Court address Petitioner's requests for relief seriatim.
Petitioner's Claim for Expungement of IR 3405638 is Partially Non-Cognizable and, to the Extent Petitioner's Request is Cognizable, the District Court Lacks Jurisdiction to Consider Petitioner's Claim
Petitioner complains that the loss of “privileges and good conduct time” as a result of IR 3405638 was imposed in violation of his Fifth Amendment rights under the Constitution. (Doc. 1 at 4.) He requests expungement of IR 3405638. Id. As explained below, the loss of “privileges” does not change the duration of Petitioner's confinement and expunging his loss of the same will not shorten Petitioner's duration confinement. Thus, this Court determines that Petitioner's claim for the loss of privileges related to IR 3405638 is non-cognizable on habeas review.
However, this Court determines that Petitioner's claim for loss of good conduct time as a result of IR 3405638 is cognizable on habeas review because expungement of Petitioner's loss of good conduct time will shorten the duration of his confinement. Despite this claim's cognizability on habeas, as more fully set forth below, this Court finds that Petitioner has failed to exhaust his administrative remedies with respect to this claim for relief. Accordingly, this Court determines that the district court lacks jurisdiction to consider Petitioner's claim for expungement of IR 3405638 based on his loss of good conduct time.
Petitioner's Request for Expungement of IR 3405638 Based on Loss of Privileges is Non-Cognizable
The “essence of habeas corpus is an attack by a person in custody upon the legality of that custody and that the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Habeas corpus is appropriate when it will result in immediate release or shorten the duration of confinement. Id. at 487. A habeas petition that fails to attack the legality of imprisonment is subject to dismissal. Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979). The Ninth Circuit has held that challenges concerning general conditions of confinement are not cognizable under 28 U.S.C. § 2241. See Jingles v. Carr, No. CV-18-04752-SJO-DFM, 2018 WL 11304199, at *1 (C.D. Cal. June 12, 2018) (citing Wright v. Shartle, 699 Fed.Appx. 733 (9th Cir. 2017) (finding that claims that BOP officials unconstitutionally seized mail and imposed sanctions of loss of phone, visitation, and email correspondence privileges are not cognizable under § 2241)).
As set forth above, Petitioner complains that the loss of “privileges and good conduct time” is in violation of his Fifth Amendment rights under the Constitution. (Doc. 1 at 4.) The loss of privileges does not change the duration of Petitioner's confinement and expunging IR 3405638's loss of privileges sanction will not shorten Petitioner's duration of confinement. Thus, this Court determines that Petitioner's request for expungement of IR 3405638 based on his loss of privileges is non-cognizable on habeas review.
Petitioner's Claim for Expungement of IR 3405638 Based on Loss of Good Conduct Time is Unexhausted and Non-Reviewable
The BOP operates an Administrative Remedy Program, which is designed to allow an inmate to seek formal review of an issue relating to any aspect of his or her confinement. See 28 C.F.R. § 542.10, et seq. An inmate may use the Administrative Remedy Program to appeal a DHO hearing. See 28 C.F.R. § 542.14(d)(2). With respect to appeals from disciplinary hearings, an inmate is not required to seek informal resolution or to submit an initial request to the Warden. Instead, an inmate is to submit an appeal from a disciplinary hearing directly to the Regional Director, with subsequent, final appeal to the General Counsel. See 28 C.F.R. §§ 542.14(d)(2); 542.15(a). Appeal to the Office of General Counsel is the final administrative appeal in the BOP remedy process. See 28 C.F.R. § 542.15(a).
As a prudential matter, federal prisoners must exhaust their administrative remedies before bringing a habeas petition pursuant to § 2241. Pinson v. von Blanckensee, No. CV-19-00584-TUC-RM (JR), 2021 WL 848842, at *2 (D. Ariz. Feb. 10, 2021), report and recommendation adopted sub nom. Pinson v. Blanckensee, No. CV-19-00584-TUC-RM, 2021 WL 842141 (D. Ariz. Mar. 5, 2021), reconsideration denied, No. CV-19-00584-TUC-RM, 2021 WL 2439289 (D. Ariz. June 15, 2021), and aff'd sub nom. Pinson v. Von Blanckensee, No. 21-16138, 2022 WL 2256323 (9th Cir. June 23, 2022), and aff'd sub nom. Pinson v. von Blanckensee, No. 21-16138, 2022 WL 2256323 (9th Cir. June 23, 2022) (citing Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). “[T]he requirement of exhaustion of remedies will aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors in the course of administrative proceedings.” Pinson, 2021 WL 848842, at *2 (quoting Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983)).
Administrative exhaustion also protects an administrative agency's authority, discouraging disregard of its procedures and permitting it to correct its own errors. Pinson, 2021 WL 848842, at *2 (citing Woodford v. Ngo, 548 U.S. 81, 89 (2006); Ruviwat, 701 F.2d at 845). If a petitioner has not properly exhausted his claims, the district court, in its discretion, may either “excuse the faulty exhaustion and reach the merits, or require the petitioner to exhaust his administrative remedies before proceeding in court.” Pinson, 2021 WL 848842, at *2 (quoting Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990)).
Here, Petitioner inconsistently claims that he both exhausted-and failed to exhaust- his administrative remedies. (Doc. 1 at 4.) For example, Petitioner circled “Yes” in response to the question “Did you exhaust all available administrative remedies relating to Ground One?” Id. However, Petitioner also states that he did not exhaust all of his administrative remedies claiming, “no BP-11 forms available as no access to his counselor in SHU as well as retaliation concerns.” Id.
Respondent has provided Petitioner's administrative remedy history setting forth that as of October 19, 2020, Petitioner had filed a total of three administrative remedy appeals. (Doc. 14-1 at pp. 5-6, ¶¶ 11-14.) Two of these three administrative remedy appeals were filed in 2003 and 2004 and the third was filed on July 31, 2020 and relates to the instant matter (IR 3405638). Id. at 5, ¶¶ 12-13. Respondent points out that as of November 3, 2020, Petitioner had not filed a BP-11 form regarding IR 3405638. Id. at ¶ 14. As mentioned above, Petitioner appears to agree that he did not submit at BP-11 form. (Doc. 1 at 4.)
Generously construed, Petitioner appears to be contending that prison officials have prevented him from obtaining forms to complete his administrative appeal. Acts by prison officials preventing the exhaustion of administrative remedies may make administrative remedies effectively unavailable. See Nunez v. Duncan, 591 F.2d 1217, 1224-225 (9th Cir. 2010). Here, however, Petitioner has failed to support his vague, self-serving statement that BOP officials have prevented him from exhausting his administrative appeal of IR 3405638. For instance, Petitioner fails to allege that he requested a BP-11 form and that his request was denied. Additionally, Petitioner fails to allege that he attempted to submit an appeal on another document or form while in the SHU.
Other district courts have recognized that the BOP's administrative remedy process expressly provides an inmate with an opportunity to request an extension of time to file an appeal where the inmate has demonstrated a valid reason for delay in appealing. See Cruz v. Fox, No. CV-14-05113-R (DTB), 2015 WL 858661, at *3 (C.D. Cal. Feb. 24, 2015) (citing 28 C.F.R. §§ 542.14(b), 542.15(a)). In Cruz, the district court found that the petitioner failed to exhaust his administrative remedies where there the only evidence was the petitioner's self-serving contention that prison officials prevented him from appealing the adverse disciplinary decision and there was no evidence that the petitioner attempted to request an extension of time to appeal the adverse disciplinary decision. 2015 WL 858661, at *3. See also Garcia v. Merendino, No. 1:21-CV-01325, 2021 WL 4255473, at *2 (W.D. La. Spt. 9, 2021) (refusing to excuse inmate's failure to exhaust administrative remedies finding “[t]he BOP's administrative remedy process expressly allows an inmate to request an extension of the filing time if the inmate demonstrates a valid reason for delay”).
Here, Plaintiff has submitted only his self-serving statement that “no BP-11 forms [were] available” and “no access to his counselor.” (Doc. 1 at 4.) As mentioned above, Petitioner has failed to allege that he requested such a form, that he tried to appeal on any other form or document, or that he attempted to obtain an extension of time to file an administrative appeal. Petitioner fails to set forth any time period that he was purportedly denied administrative remedy forms, fails to provide any facts to indicate who denied him the requisite form, and he fails to offer any details regarding his “retaliation concerns.” Indeed, the record establishes that Plaintiff was able to file a BP-10 regarding IR 3405638.
The Court finds the use of the administrative remedy process would have allowed the BOP to investigate Petitioner's claims, and, if warranted, correct any alleged errors. Since Petitioner has failed to complete the administrative review process and exhaust his administrative appeal, he has disallowed any of the BOP's formal administrative levels an opportunity to consider his claim. See Quinonez v. McGrew, 2016 WL 1728980, at *1 (9th Cir. Apr. 29, 2016) (affirming district court's dismissal of § 2241 petition for failure to exhaust administrative remedies where the petitioner "did not complete any level of the BOP's Administrative Remedy Program and there is no indication that his pursuit of those remedies would be futile"). Accordingly, this Court finds that the district court is without jurisdiction to consider Petitioner's request for expungement of IR 3405638 related to his claim for loss of good conduct time as a result of Petitioner's failure to exhaust his administrative remedies.
In sum, this Court finds that Petitioner's claim for the loss of privileges related to IR 3405638 is non-cognizable on habeas review. This Court also finds that the district court lacks jurisdiction to consider Petitioner's request for expungement of IR 3405638 based on his loss of good conduct time as a result of his failure to exhaust his administrative remedies.
Petitioner's Request for Release from the SHU is Moot
Mootness is a threshold jurisdictional issue. St. Paul Fire & Marne Ins. Co. v. Barry, 438 U.S. 531, 537 (1978). “Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies.” Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985). “Because Article III restricts federal court jurisdiction to actual cases and controversies, federal courts may not ‘give opinions upon moot questions or abstract propositions.'” Pinson v. Othon, No. CV-20-00169-TUC-RM, 2020 WL 7404587, at *2 (D. Ariz. Dec. 17, 2020) (quoting Calderon v. Moore, 518 U.S. 149, 150 (1996)). “A case that become moot at any point during the proceedings in no longer a case or controversy for purposes of Article III and is outside the jurisdiction of the federal courts.” United States v. Sanchez-Gomez, 138 S.Ct. 1532, 1537 (2018) (citations and internal quotations omitted).
The United States Court of Appeals for the Ninth Circuit has recognized that a habeas petitioner's claim that he is improperly housed in the SHO is mooted when the petitioner is no longer housed in the SHU. See Wright, 699 Fed.Appx. 733 (9th Cir. 2017) (citing Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir. 1997) (“Because Munoz has been released from the SHU, we can no longer provide him the primary relief sought in his habeas corpus petition. Munoz's Fifth and Eighth Amendment challenges to the ‘debriefing' process and the conditions of confinement in the SHU are therefore moot, and must be dismissed.”).
Petitioner is currently housed at the USP Canaan in Waymart, Pennsylvania. He is not housed in the SHU at USP Tucson. Accordingly, this Court finds that Petitioner's request to be released from the SHU is moot.
Petitioner's Request for Compassionate Release is Non-Cognizable and the District Court Lacks Jurisdiction Over His Claim Regarding Home Confinement
Lastly, Petitioner seeks an order directing Respondent “to properly consider Petitioner for home confinement/compassionate release and to release him due to unconstitutional COVID-19 concerns.” (Doc. 1 at 9.)
Petitioner's Claim for Compassionate Release is Non-Cognizable
As laid out by Respondent, “[a] necessary predicate for the granting of federal habeas relief [ ] is a determination by the federal court that [the] custody violates the Constitution, laws, or treaties of the United States.” Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam) (citing 28 U.S.C. § 2241); Hewitt v. Helms, 459 U.S. 460, 469 (1983) (in order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought). “There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979). “A mere expectation of receiving a benefit is not enough to create a protected liberty interest.” Roberts v. Spaulding, 783 F.2d 867, 870-71 (9th Cir. 1986). In the context of compassionate release, the Ninth Circuit has made it clear there is no constitutional liberty interest at stake; the mere hope of conditional liberty is “a hope which is not protected by due process.” Simmons v. Christensen, 894 F.2d 1041, 1043 (9th Cir. 1990) (quoting Greenholtz, 442 U.S. at 11).
This Court agrees with Respondent that, to the extent Petitioner is claiming that his due process rights were violated because the BOP failed to follow its own rules regarding compassionate release, Petitioner is not entitled to the protections of the due process clause because he does not have a liberty interest in compassionate release. See Lee v. Zuniga, Case No. 1:15-cv-00297-LJO-MJS, 2017 WL 2628101, at *4 (E.D. Cal. 2017) (recognizing that “[t]he Ninth Circuit has held that the BOP's refusal to bring a motion for compassionate release under [18 U.S.C.] § 4205(g) is not subject to judicial review.”). See also Masters v. Hyde, Case No. 2:18-CV-00003 JM/JTR, 2018 WL 921505, at *2 (E.D. Ark. Feb. 16, 2018) (“Because Masters does not have a protected liberty interest in obtaining a § 3582(c)(1)(A) compassionate release or reduction in sentence, he does not have a due process right to require [defendants to comply with internal BOP Program Statements or policies regarding the processing of his request.”); Hernandez-Castillo v. Bureau of Prison, No. 02-5733, 2003 WL 463477, *1 (6th Cir. Feb. 20, 2003) (“Hernandez-Castillo's due process rights were not violated because he lacks any procedural due process liberty interest in compassionate release”); Fristoe v. Thompson, 144 F.3d 627, 630 (10th Cir. 1998) (“The Constitution does not itself afford appellant a liberty interest in a reduced sentence.”).
As laid out by Respondent, while 18 U.S.C. § 3582(c)(1)(A) authorizes the BOP (or an inmate) to file a motion for compassionate release, the BOP is not required to file a motion for compassionate release on an inmate's behalf. (Doc. 14 at pp. 20-21.) Here, if the BOP were to file a motion for compassionate release on Petitioner's behalf, it is Petitioner's sentencing court that must order Petitioner's compassionate release. See 18 U.S.C. 3582(c)(1)(A). There is simply no guarantee that Petitioner's sentencing court would grant Petitioner compassionate release. Accordingly, this Court finds that Petitioner does not have a liberty interest in a compassionate or early release.
In light of the foregoing, this Court finds that Petitioner's compassionate release claim is non-cognizable on habeas review.
The District Court Lacks Jurisdiction Over Petitioner's Claim Regarding Home Confinement
Respondent asserts, and Petitioner does not contest, that the BOP has exclusive authority to determine the location where an inmate serves his custodial sentence, including whether transfer to home confinement is more appropriate for a particular defendant. See Tapia v. United States, 564 U.S. 319, 331 (2011) (“When a court sentences a federal offender, the BOP has plenary control, subject to statutory constraints, over [the place of imprisonment and treatment program].”). While an inmate's sentencing court may make a non-binding recommendation to the BOP as to home confinement, the BOP's designation decision “is not reviewable by any court.” 18 U.S.C. §§ 3621(b) and 3624(c).
The Ninth Circuit has held that “18 U.S.C. § 3625 precludes judicial review under the [APA] of the BOP's individualized . . . determinations made pursuant to 18 U.S.C. § 3621” including decisions regarding home confinement. Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (“The plain language of [18 U.S.C. § 3625] specifies that the judicial review provisions of the APA . . . do not apply to ‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624.”). See also McIntire v. Smith, No. CV-11-895-PHX-FJM (LOA), 2012 WL 1392522, at *3-4 (D. Ariz. Mar. 28, 2012) (same) (citing Reeb, 636 F.3d at 1225-28); Poole v. Lothrop, No. CV-18-0187-PHX-GMS (DMF), 2019 WL 2028993, at *6 (D. Ariz. Feb. 26, 2019) (same), report and recommendation adopted, 2019 WL 2027939 (D. Ariz. May 8, 2019); James v. Bureau of Prisons, No. CV-19-04842-PHX-SRB (JZB), 2020 WL 1236738, at *2 (D. Ariz. Feb. 13, 2020) (same).
In 2018, the FIRST STEP Act was enacted which, inter alia, amended 18 U.S.C. § 3621(b), providing that “[notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C. § 3621(b) (2020). District courts interpreting this provision have uniformly held that the designation and placement decisions made by the BOP, including whether an inmate is granted home confinement, are not reviewable by the district court. See Wilcox v. Merlak, No. 1:19-cv-01410-NONE-SKO (HC), 2020 WL 996630, at *3 (E.D. Cal. Mar. 2, 2020) (“Thus, Petitioner's challenge to the BOP's discretionary decision with respect to whether and when he is eligible for home confinement placement . . . is not reviewable by this Court.”); United States v. Robledo, No. 18-CR-2190-AJB, 2020 WL 2542641, at *7 (S.D. Cal. May 19, 2020) (“the decision to grant or deny home confinement is within the discretion of BOP and not subject to judicial review.”); United States v. Carlucci, No. 10-00464-01-KHV, 2020 WL 2527013, at *3 (D. Ariz. May 18, 2020) (“While the CARES Act gives the BOP broad discretion to expand the use of home confinement during the COVID-19 pandemic, the Court lacks jurisdiction to order home detention under this provision.”).
In light of the foregoing, this Court finds that the district court is without jurisdiction to consider Petitioner's request for an order directing Respondent to consider him for home confinement.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, DENY the Petition (Doc. 1).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court.
If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-352-TUC-SHR. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).