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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Richard Alan King, 

Defendant/Movant.

No. CV-16-00086-PHX-SRB

 CR-08-00045-PHX-SRB 

ORDER 

 Movant Richard Alan King filed his Motion to Vacate, Set Aside, or Correct 

Sentence pursuant to 28 U.S.C. § 2255 on January 14, 2016. The Motion was later 

amended to correct typographical errors. The United States filed its Answer Limited to 

Affirmative Defenses on October 6, 2017 and King filed his Reply on April 9, 2018. On 

June 5, 2018 the Magistrate Judge issued his Report and Recommendation 

recommending that the Motion be denied and dismissed with prejudice. Timely written 

objections were filed by King and by the United States. The Report and Recommendation 

also recommended that two pending Motions to Amend be denied. The Magistrate Judge 

denied King’s Motion to Show Cause and Motion for Extension of Time and denied as 

moot the United States’ Motion to Permit It to Respond Only When Ordered. 

. . . 

. . . 

. . . 
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GOVERNMENT’S OBJECTION 

 The Government filed a single objection to the Report and Recommendation. The 

objection states it was filed solely to preserve the issues in the event of a defense 

objection or appeal. The objection to the Report and Recommendation is based on its 

failure to recommend that the Court deny the United States’ petition for the alternative 

reasons set forth in the response. The objection is overruled. The Court is not required to 

decide cases on all alternate grounds suggested or argued by the parties. 

KING’S OBJECTIONS 

King objects to the Report and Recommendation on what the Court considers a 

frivolous ground, namely, that because there was no specific mention of his reply the 

Magistrate Judge must not have considered it. According to King both references by the 

Magistrate Judge to the Amended Motion to Vacate being fully briefed somehow means 

that the Magistrate Judge did not consider his reply. Following this argument to its 

logical conclusion, the Magistrate Judge’s failure to mention the Government’s answer 

would mean that when the Magistrate Judge said the matter was fully briefed he had not 

considered that either. In this Court’s view when a matter is “fully briefed” that means 

that the motion, response and reply have been filed and have been considered. King’s 

objection on the grounds that his reply was not considered is overruled. 

 King’s next objection is to the Magistrate Judge’s recommendation that his 

Motion to Amend to add a claim under United States v. Sanchez-Gomez be denied. This 

objection is also a frivolous one in that King does not explain why the Magistrate Judge’s 

ruling is incorrect. King only claims that it is insufficiently specific and, therefore, he is 

prejudiced. He claims to have no knowledge of the ruling in Sanchez-Gomez but 

considers it “highly improbable that the Supreme Court would find that the Ninth Circuit 

does not have jurisdiction to en banc over-rule its former decision.” This is an 

insufficient objection to the Report and Recommendation of the Magistrate Judge. 

 King also objects to the Magistrate Judge’s denial of his Motion to Show Cause 

Why the United States Should Not be Held in Civil Contempt and his Motion for 
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Extension of Time to File Objections to Reports and Recommendations and Replies to 

any of Respondent’s Moving Papers and Magistrate Decisions. While King requests de 

novo review of these denials, de novo review is not the standard for the Court’s review of 

a non-dispositive order of the Magistrate Judge. An order of a Magistrate Judge on a nondispositive matter is reviewed by this Court for clear error or decisions contrary to law. 

Rule 72(a), Fed. R. Civ. P. The Magistrate Judge explained that because the United 

States had not failed to comply with a court order the Motion for an Order to Show Cause 

Why the United States Should Not be Held in Civil Contempt cannot stand. This Court 

agrees. Moreover, there was nothing clearly erroneous or contrary to law in denying 

King’s request for a blanket extension. 

 Finally, King objects to the Magistrate Judge’s recommendation denying a 

Certificate of Appealability and leave to proceed in forma pauperis on appeal and cites in 

support of his objections his motion and reply. Because the Court agrees with the 

Magistrate Judge’s Report and Recommendation that this Court cannot consider his 

claims of ineffective assistance of counsel and is procedurally barred from considering 

his claim that could have been, but was not raised on appeal, this objection is also 

overruled. The Court finds itself in agreement with the Report and Recommendation 

of the Magistrate Judge. 

 IT IS ORDERED adopting the Report and Recommendation of the Magistrate 

Judge as the Order of this Court. (Doc. 65) 

 IT IS FURTHER ORDERED that Movant’s Amended Motion to Vacate, Set 

Aside or Correct Sentence is denied and dismissed with prejudice. 

 IT IS FURTHER ORDERED that Movant’s Motion to Amend to expand his 

ineffective assistance of counsel claims is denied. (Doc. 25) 

 IT IS FURTHER ORDERED that Movant’s Motion to Amend to add a claim 

under United States v. Sanchez-Gomez is denied. (Doc. 26) 

 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 

proceed in forma pauperis on appeal because dismissal of the Motion is justified by a 
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plain procedural bar and jurists of reason would not find the ruling debatable. 

 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly. 

 Dated this 2nd day of August, 2018.