1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Larry Lorenzo Downing, 

Petitioner/Defendant, 

v. 

United States of America, 

Respondent/Plaintiff.

No. CV-17-03898-PHX-GMS

No. CR-09-00709-04-PHX-GMS 

ORDER 

 Pending before the Court is the Report and Recommendation of United States 

Magistrate Judge James F. Metcalf, (Doc. 14), which recommends that the Motion to 

Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 of Petitioner Larry 

Lorenzo Downing (Doc. 1) be denied. Downing timely filed objections to the R&R. (Doc. 

15). Also pending before the Court is Downing’s Motion to Request Concurrent Sentences 

(Doc. 16) and Motion to Appoint Counsel (Doc. 18). For the following reasons, the Court 

adopts the R&R and denies the Motions for Concurrent Sentences and to Appoint Counsel. 

BACKGROUND

Because no party has objected to the factual and procedural background set forth in 

the R&R, the Court adopts the background as an accurate account. 

DISCUSSION

I. Legal Standards 

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). “[T]he district 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

judge must review the magistrate judge’s findings and recommendations de novo if 

objection is made, but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 

(9th Cir. 2003) (en banc) (emphasis in original). District courts are not required to conduct 

“any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 

474 U.S. 140, 149 (1985). 

II. Analysis 

A. Motion to Vacate, Set Aside or Alter 

Downing’s Motion to Object (Doc. 15) states that Downing “hereby objects to the 

district court ruling. From paragraphs C, one through five.” (Doc. 15 at 1). However, 

Downing fails to give any further detail regarding what his objections are to the R&R. The 

Court is unable to conduct meaningful review of the R&R because the objection fails to 

point to any facts or make any legal arguments on which the Court could rule in his favor. 

B. Motion for Concurrent Sentence 

Downing has also filed a Motion to Request Concurrent State Sentence with Federal 

Sentence (Doc. 16). Downing’s motion states that he has approximately eight months 

remaining on his Arizona state sentence, and that he “could transfer to Federal Detension 

[sic].” (Id. at 16). Even construing Downing’s pro se filing liberally, his Motion sets forth 

no legal or factual arguments upon which the Court could rule in his favor. 

IT IS THEREFORE ORDERED adopting the Report and Recommendation of 

Magistrate Judge Metcalf (Doc. 14) in full. 

IT IS FURTHER ORDERED that Ground One and the portion of Ground Two 

related to ineffective assistance in Downing’s supervised release revocation of Petitioner 

Larry Lorenzo Downing’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is 

construed as a petition for writ of habeas corpus under 28 U.S.C. § 2241 and is DENIED. 

IT IS FURTHER ORDERED that the remainder of Petitioner’s Motion to Vacate, 

Set Aside or Correct Sentence (Doc. 1) is DISMISSED WITH PREJUDICE as untimely. 

The Clerk of Court is directed to terminate this action and enter judgment accordingly. 

/ / / 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 IT IS FURTHER ORDERED that a certificate of appealability is DENIED

because reasonable jurists would not find the Court’s procedural ruling as debatable. Slack 

v. McDaniel, 529 U.S. 473, 484 (2000). 

IT IS FURTHER ORDERED that Petitioner’s Motion to Request Concurrent 

State Sentence with Federal Sentence (Doc. 16) is DENIED. 

IT IS FURTHER ORDERED that Petitioner’s Motion to Appoint Counsel (Doc. 

18) is DENIED AS MOOT. 

 Dated this 8th day of April, 2019.