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

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

John H. Estep,

Petitioner,

v. 

JT Shartle,

Defendant.

No. CV-15-00443-TUC-RM

ORDER

Pending before the Court is a Report and Recommendation issued by Magistrate 

Leslie A. Bowman (Doc. 14). In her Report and Recommendation, Judge Bowman 

recommends that this Court dismiss Petitioner’s Petition because his claim is not 

cognizable. No objections were filed.

A district judge must “make a de novo determination of those portions” of a 

magistrate judge’s “report or specified proposed findings or recommendations to which 

objection is made.” 28 U.S.C. §636(b)(1)(C). The advisory committee notes to Rule 

72(b) of the Federal Rules of Civil Procedure state that, “[w]hen no timely objection is 

filed, the court need only satisfy itself that there is no clear error on the face of the record 

in order to accept the recommendation” of a magistrate judge. See also Prior v. Ryan, 

2012 WL 1344286, *1 (D. Ariz. Apr. 8, 2012) (reviewing for clear error unobjected-to 

portions of Report and Recommendation); Johnson v. Zema Sys. Corp., 170 F.3d 734, 

739 (7th Cir. 1999) (“If no objection or only partial objection is made, the district judge 

reviews those unobjected portions for clear error.”).

Case 4:15-cv-00443-RM Document 16 Filed 04/15/16 Page 1 of 3
- 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

This Court agrees with the Report and Recommendation’s conclusion that 

Petitioner has not presented a cognizable challenge to the sentencing court’s restitution 

order. Ninth Circuit cases that review 28 U.S.C. § 2241 challenges to a sentencing 

court’s restitution order involve the court’s improper delegation of authority to a prison. 

See, e.g., Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012); United States v. Lemoine, 546 

F.3d 1042 (9th Cir. 2008). Here, however, the delegation challenged is not to the prison 

but to the United States Office of Personnel Management. Thus, Petitioner is suing 

Respondent for habeas relief when Respondent has no involvement in the alleged 

unlawful conduct. The Report and Recommendation is correct that the more appropriate 

avenue for relief was Petitioner’s direct appeal of his sentence. Petitioner failed to raise 

this issue in his direct appeal and may not cure that failure by raising it in a § 2241 

petition.

Additionally, Petitioner’s case varies in another significant way from the 

precedent detailing unlawful delegations of the sentencing court’s authority. Typically, 

the cases involve the prison creating a schedule for restitution payments and determining 

how much to take out of the prisoner’s prison account. See, e.g., Ward, 678 F.3d at 1044; 

Lemoine, 546 F.3d at 1044. This improperly leaves it to the prisons to determine when 

and how restitution payments will be made. To the contrary, here, the sentencing court 

directed the Office of Personnel Management to take all of Petitioner’s monthly 

retirement benefits until the restitution order has been fulfilled. By not leaving it to the 

Office of Personnel Management to determine when and how much of his retirement 

funds would be contributed to pay off the restitution order, the sentencing court did not 

delegate its authority. See Gunning, 401 F.3d at 1149. Thus, even if Petitioner had made 

a cognizable claim for improper delegation, the facts demonstrate that no such delegation 

occurred.

. . .

. . .

. . .

Case 4:15-cv-00443-RM Document 16 Filed 04/15/16 Page 2 of 3
- 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

Accordingly,

IT IS HEREBY ORDERED as follows:

1. Magistrate Judge Leslie A. Bowman’s Report and Recommendation (Doc. 

14) is accepted and adopted.

2. Petitioner’s Petition (Doc. 1) is denied and this action is dismissed.

3. The Clerk of Court is directed to close this case.

Dated this 15th day of April, 2016.

Honorable Rosemary Márquez

United States District Judge

Case 4:15-cv-00443-RM Document 16 Filed 04/15/16 Page 3 of 3