Schmidt v. Del Toro

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Julian D Schmidt, No. CV-23-02030-PHX-JJT (JZB) 10 Plaintiff, ORDER 11 v. 12 Carlos Del Toro, et al., 13 Defendants. [14] 15 Before the Court is the Report and Recommendation (Doc. 13, “R&R”) entered by 16 United States Magistrate Judge John Z. Boyle that concludes the Court should deny and 17 dismiss with prejudice Julian D. Schmidt’s Petition for Writ of Error Coram Nobis, which 18 Mr. Schmidt has styled a Petition for Declaratory Judgment pursuant to 28 U.S.C. 19 § 2201(a) (Doc. 1, “Petition”). In the R&R, Judge Boyle warned the parties that they had 20 fourteen days from the date of service of the R&R, which was October 25, 2024, to file 21 any specific written objections to it with the Court. Judge Boyle further warned that “failure 22 to timely file objections [to the R&R] may result in the acceptance of [it] by the district 23 court without further review.” (R&R at 17-18.) It has now been more than three months 24 since entry and service of the R&R and Petitioner Schmidt has filed no objections thereto. 25 The Court is thus empowered to accept the recommendations without further review. It 26 nonetheless elects to conduct a review of the recommendations on their merits; upon doing 27 so, the Court concludes that adoption of Judge Boyle’s recommendations, as well as his 28 reasoning as set forth in the thorough 18-page report, is justified. 1 In the R&R, Judge Boyle applied the factors set forth in Dodson v. Zelez, 917 F.2d 2 1250, 1252-53 (10th Cir. 1990) to each of Petitioner’s five asserted claims or grounds for 3 relief from his conviction under the Uniform Code of Military Justice as affirmed by the 4 Navy-Marine Corps Court of Criminal Appeals and subsequently the United States Court 5 of Appeal for the Armed Forces. While Dodson is a decision by a sister circuit court, the 6 Ninth Circuit has yet to formulate its own test for collateral review of a judgment from 7 military tribunals of the United States, and in that absence, district courts in this circuit 8 consistently have applied the Tenth Circuit’s formulation in Dobson. See, e.g., Threats v. 9 Howard, No. CV-21-00333-TUC-JAS(BDM), 2023 WL 8112601 at *4 (D. Ariz. Mar. 24, 10 2023). 11 In detailed analysis clearly set forth in the R&R, Judge Boyle concludes that each 12 of Petitioner’s five claims or grounds failed under Dodson’s fourth requirement at least, as 13 in each of the five arguments, Petitioner failed to demonstrate that the military courts that 14 adjudged and then reviewed and affirmed his conviction failed to give adequate 15 consideration to the issues involved or to apply proper legal standards. (R&R at 11-17.) 16 Judge Boyle identified those portions of the record demonstrating that the military courts 17 had in fact addressed each of the issues Petitioner raised, and the Court will not repeat the 18 R&R’s treatment here. Failure to satisfy any of the four prongs or requirements of the 19 Dodson test is fatal to the granting of coram nobis review of an issue. For these reasons, 20 IT IS ORDERED adopting in whole the R&R (Doc. 13) submitted by Judge Boyle 21 and denying and dismissing with prejudice the Petition for Declaratory Judgment pursuant 22 to § 2201(a) to 28 U.S.C. (Doc. 1). 23 IT IS FURTHER ORDERED denying a certificate of appealability, as the Court 24 concludes Petitioner has failed to show the denial of a constitutional right and jurists would 25 not find that conclusion reasonably debatable. 26 . . . 27 . . . 28 . . . 1 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment and 2 || terminate this matter. 3 Dated this 10th day of February, 2025. CN 4 “wok: Unie States#District Judge [28] -3-