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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Latoya Nivea Morehead, 

Movant/Defendant, 

v. 

USA, 

Respondent/Plaintiff.

CV-18-00055-PHX-JAT (JZB)

CR-12-01577-PHX-JAT 

ORDER 

 Pending before the Court is the Report and Recommendation (“R&R) from the 

Magistrate Judge recommending that the Motion to Vacate, Set Aside, or Correct Sentence 

filed pursuant to 28 U.S.C. § 2255 be denied (“Motion”). (Doc. 23). This Court “may 

accept, reject, or modify, in whole or in part, the findings or recommendations made by the 

magistrate judge.” 28 U.S.C. § 636(b)(1). 

The R&R advised the parties that they had 14 days to file objections. (Doc. 23 at 

20-21). Neither party filed objections. 

 Because neither party file objections, the Court hereby accepts the R&R except for 

the recommendation on whether to grant a certificate of appealability, which will be 

discussed below. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts 

are not required to conduct “any review at all . . . of any issue that is not the subject of an 

objection” (emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 

2003) (en banc) (“statute makes it clear that the district judge must review the magistrate 

judge’s findings and recommendations de novo if objection is made, but not otherwise” 
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(emphasis in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 

2003). 

 After the R&R was issued, Movant filed two documents. One is motion for a 

certificate of appealability and leave to proceed in forma pauperis on appeal. (Doc. 24). 

This document makes substantive arguments regarding why Movant believes she should 

be allowed to pursue an appeal. The second document is a motion for leave to appeal in 

forma pauperis. (Doc. 25). This document outlines Movant’s financial resources. 

 Although Movant did not caption her motion for certificate of appealability as an 

objection to the R&R, the Court will nonetheless review that recommendation de novo. See 

Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 

Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge=s] 

recommendations to which the parties object.”). Movant argues that she should be granted 

a certificate of appealability because the R&R made recommendations without conducting 

an evidentiary hearing or permitting discovery. (Doc. 24 at 1). 

Regarding the discovery issue, the undersigned ruled on that request (Doc. 4 at 2-3) 

prior to the case being referred to the Magistrate Judge. This Court denied the request for 

discovery without prejudice to re-urging the request after Respondent was served. (Id.). 

Movant does not cite, and this Court has not located, any point in the record where she 

renewed the request. Accordingly, this discovery request is not a basis to grant a certificate 

of appealability because Movant did not timely re-urge the issue. 

The Court has reviewed the request for an evidentiary hearing de novo. (See Doc. 

23 at 20). Movant seeks an evidentiary hearing on her claim that her counsel was 

ineffective. This Court agrees with the R&R that the record conclusively establishes that 

Movant’s counsel did not provide ineffective assistance and, therefore, no evidentiary 

hearing is necessary to decide the Motion. Because both of Movant’s arguments regarding 

why she should receive a certificate of appealability fail, the Court will accept the 

recommendation of the R&R that this Court deny a certificate of appealability. 

Therefore, 
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IT IS ORDERED that the Report and Recommendation (Doc. 23) is accepted and 

adopted; the Motion is denied, with prejudice, and the Clerk of the Court shall enter 

judgment accordingly. 

IT IS FURTHER ORDERED that the motions for a certificate of appealability 

and leave to proceed in forma pauperis on appeal (Docs. 24 and 25) are denied. This Court 

denies issuance of a certificate of appealability and leave to appeal in forma pauperis. 

Dated this 11th day of January, 2019.