Brian Jerome Lindsey v. Brian K. Birkholtz

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9 BRIAN JEROME LINDSEY, Case No. 2:22-cv-6793-FLA (MAR) Petitioner, ORDER ACCEPTING FINDINGS

AND RECOMMENDATION OF

v. UNITED STATES MAGISTRATE

BRIAN K. BIRKHOLTZ, JUDGE

Respondent.

16 Pursuant to 28 U.S.C. § 636, the court has reviewed the Petition, the records 17 on file, and the Report and Recommendation of the United States Magistrate 18 Judge. No objections have been filed. The court accepts the recommendation of 19 the Magistrate Judge but clarifies the court’s reasoning below. 20 First, the court notes that it is unclear whether Petitioner’s “purely legal” 21 argument qualifies as a claim of “actual innocence” for purposes of qualifying for 22 the escape hatch. Compare Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) 23 (finding claim did not qualify as a claim of “actual innocence” under the escape 24 hatch where it was based on a non-retroactive interpretation of sentencing 25 guidelines and petitioner did not argue they were factually innocent of the 26…