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United States v. Grimm

United States District Court, D. Nevada

January 16, 2020

UNITED STATES OF AMERICA, Plaintiffs,
v.
STEVEN GRIMM, et al., Defendants.

          ORDER

         Presently before the court is petitioner Steven Grimm's (“petitioner”) motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (ECF No. 707).

         Also before the court is petitioner's motion to hold his § 2255 motion in abeyance for 60 days. (ECF No. 709). The United States of America (“the government”) has not responded, and the time to do so has passed.

         Also before the court is petitioner's motion for evidentiary hearing pursuant to Rule 8 of the rules governing § 2255. (ECF No. 711).

         Also before the court is Magistrate Judge Foley's order and report and recommendation (“R&R”). (ECF No. 742). Petitioner filed an objection to the R&R. (ECF No. 750). The government did not file a response, and the time to do so has passed.

         I. Background

         The instant action arises from petitioner's conviction for conspiracy to commit bank fraud, mail fraud, and wire fraud; bank fraud; aiding and abetting bank fraud; mail fraud; aiding and abetting mail fraud; wire fraud; and aiding and abetting wire fraud. (ECF No. 434). Petitioner was sentenced and remanded into custody to serve twenty-five years in prison followed by a five-year term of supervised release as to each count, to run concurrently. Id.

         Petitioner appealed the judgment and filed a motion for new trial. (ECF No. 525). The court conducted a two-day evidentiary hearing (ECF Nos. 647; 649) and denied petitioner's motions for a new trial (ECF No. 565). The Ninth Circuit affirmed the court's order denying a new trial and petitioner's sentence but vacated and remanded for reconsideration on the appropriate amount of forfeiture. (ECF No. 680).

         Petitioner then filed a litany of motions, including: motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 (ECF No. 707); motion for appointment of counsel (ECF No. 708); motion to hold in abeyance (ECF No. 709); motion for discovery (ECF No. 710); and motion for evidentiary hearing (ECF No. 711).

         Magistrate Judge Foley denied petitioner's motions for appointment of counsel and for discovery. (ECF No. 742). Magistrate Judge Foley also recommended the court deny petitioner's motion for an evidentiary hearing. (ECF No. 711). Petitioner filed an objection to the R&R and included objections to Magistrate Judge Foley's order. (ECF No. 750).

         II. Legal Standard

         A. Reconsidering a magistrate judge's order

         A district judge may affirm, reverse, or modify, in whole or in part, a magistrate judge's order, as well as remand with instructions. LR IB 3-1(b).

         Magistrate judges are authorized to resolve pretrial matters subject to the district judge's review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case under LR IB 1-3, when it has been shown the magistrate judge's order is clearly erroneous or contrary to law.”). The “clearly erroneous” standard applies to a magistrate judge's factual findings, whereas the “contrary to law” standard applies to a magistrate judge's legal conclusions. See, e.g., Grimes v. Cty. of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991).

         A magistrate judge's finding is “clearly erroneous” if the district judge has a “definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “[R]eview under the ‘clearly erroneous' standard is significantly deferential.” Concrete Pipe & ...


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