United States District Court, D. Nevada
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).
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.
before the court is petitioner's motion for evidentiary
hearing pursuant to Rule 8 of the rules governing §
2255. (ECF No. 711).
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.
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.
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).
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).
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).
Reconsidering a magistrate judge's order
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).
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).
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 & ...