1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Matthew Alejano Cordova, No. CV-20-00163-TUC-SHR
10 Petitioner, Order Adopting Report and Recommendation and Denying Other 11 v. Motions
12 David Shinn, et al.,
13 Respondents. 14 15 Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 29) 16 issued by United States Magistrate Judge D. Thomas Ferraro that recommends denying 17 Petitioner’s habeas Amended Petition (“Petition”) (Doc. 6) filed pursuant to 28 U.S.C. 18 § 2254. The Court has reviewed the record, including Petitioner’s objections (Doc. 30) 19 and Respondents’ response (Doc. 33),1 and concludes Magistrate Judge Ferraro’s 20 recommendations are not clearly erroneous, and they are adopted. See 28 U.S.C. 21 § 636(b)(1); Fed. R. Civ. P. 72. Petitioner has also filed a “Renewed Motion for 22 Appointment of Counsel “ (Doc. 35), a “Motion to Expand the Record Pursuant to Habeas 23 Rule 7 (Hearing Requested)” (Doc. 36), and a “Motion to Release on Own Recognizance 24
26 1Petitioner filed a reply to Respondents’ response (Doc. 34), despite Judge Ferraro’s R&R specifically ordering that “[n]o reply brief shall be filed on objections unless leave is 27 granted by the district court.” Petitioner did not seek leave to file his reply; accordingly, the Court will not consider it. See Fed. R. Civ. P. 72(b)(2) (providing that petitioner may 28 object to R&R and respondent may respond, but not providing reply to such response); see also 28 U.S.C. § 636(b)(1). 1 or Surety (District Judge Hearing Requested)” (Doc. 37). The Court will deny those 2 motions. 3 Report and Recommendation 4 As a threshold matter, as to any new evidence, arguments, and issues that were not 5 timely and properly raised before United States Magistrate Judge Ferraro, the Court 6 exercises its discretion to not consider those matters and considers them waived. See 7 United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000). In Howell, the United 8 States Court of Appeals for the Ninth Circuit explained: 9 [A] district court has discretion, but is not required, to consider 10 evidence presented for the first time in a party’s objection to a 11 magistrate judge’s recommendation. . . . . 12 [I]n providing for a de novo determination rather than 13 de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial 14 discretion, chose to place on a magistrate judge's proposed 15 findings and recommendations. . . . The magistrate judge system was designed to alleviate the workload of district 16 courts. To require a district court to consider evidence not previously presented to the magistrate judge would effectively 17 nullify the magistrate judge’s consideration of the matter and 18 would not help to relieve the workload of the district court. Systemic efficiencies would be frustrated and the magistrate 19 judge’s role reduced to that of a mere dress rehearser if a party 20 were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round. Equally important, 21 requiring the district court to hear evidence not previously 22 presented to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair to permit a 23 litigant to set its case in motion before the magistrate, wait to 24 see which way the wind was blowing, and—having received an unfavorable recommendation—shift gears before the 25 district judge. 26 27 Id. (internal citations and quotations omitted); see also United States v. Reyna-Tapia, 328 28 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying purpose - 2 - 1 of the Federal Magistrates Act is to improve the effective administration of justice.”).2 2 As to the objections filed by Petitioner, the Court has conducted a de novo review 3 of the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 4 [the Report and Recommendation], any party may serve and file written objections to such 5 proposed findings and recommendations as provided by rules of court. A judge of the court 6 shall make a de novo determination of those portions of the report or specified proposed 7 findings or recommendations to which objection is made. A judge of the court may accept, 8 reject, or modify, in whole or in part, the findings or recommendations made by the 9 magistrate judge. The judge may also receive further evidence or recommit the matter to 10 the magistrate judge with instructions.”). 11 In addition to reviewing the R&R and any objections and responsive briefing 12 thereto, the Court’s de novo review of the record includes review of the record and 13 authority before United States Magistrate Judge Ferraro which led to the R&R in this case. 14 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 15 objections to be without merit, rejects those objections, and adopts United States 16 Magistrate Judge Ferraro’s R&R in its entirety. See, e.g., United States v. Rodriguez, 888 17 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo review of the 18 subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on the record 19 compiled by the magistrate. Rodriguez treats adoption of the magistrate’s report as a sign 20 that he has not received his due. Yet we see no reason to infer abdication from adoption. 21 On occasion this court affirms a judgment on the basis of the district court’s opinion. 22 Affirming by adoption does not imply that we have neglected our duties; it means, rather, 23 that after independent review we came to the same conclusions as the district judge for the 24 reasons that judge gave, rendering further explanation otiose. When the district judge, after 25
27 2Assuming, arguendo, that such matters were not subject to waiver, the Court (in the alternative) has nonetheless conducted a de novo review, and upon review of the record 28 and authority herein, rejects these issues and adopts the R&R in its entirety. - 3 - 1 reviewing the record in the light of the objections to the report, reaches the magistrate’s 2 conclusions for the magistrate’s reasons, it makes sense to adopt the report, sparing 3 everyone another round of paper.”); see also Bratcher v. Bray-Doyle Independent School 4 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 5 is statutorily and constitutionally required when written objections to a magistrate’s report 6 are timely filed with the district court . . . . The district court’s duty in this regard is 7 satisfied only by considering the actual testimony [or other relevant evidence in the record], 8 and not by merely reviewing the magistrate’s report and recommendations. On the other 9 hand, we presume the district court knew of these requirements, so the express references 10 to de novo review in its order must be taken to mean it properly considered the pertinent 11 portions of the record, absent some clear indication otherwise.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Matthew Alejano Cordova, No. CV-20-00163-TUC-SHR
10 Petitioner, Order Adopting Report and Recommendation and Denying Other 11 v. Motions
12 David Shinn, et al.,
13 Respondents. 14 15 Pending before the Court is a Report and Recommendation (“R&R”) (Doc. 29) 16 issued by United States Magistrate Judge D. Thomas Ferraro that recommends denying 17 Petitioner’s habeas Amended Petition (“Petition”) (Doc. 6) filed pursuant to 28 U.S.C. 18 § 2254. The Court has reviewed the record, including Petitioner’s objections (Doc. 30) 19 and Respondents’ response (Doc. 33),1 and concludes Magistrate Judge Ferraro’s 20 recommendations are not clearly erroneous, and they are adopted. See 28 U.S.C. 21 § 636(b)(1); Fed. R. Civ. P. 72. Petitioner has also filed a “Renewed Motion for 22 Appointment of Counsel “ (Doc. 35), a “Motion to Expand the Record Pursuant to Habeas 23 Rule 7 (Hearing Requested)” (Doc. 36), and a “Motion to Release on Own Recognizance 24
26 1Petitioner filed a reply to Respondents’ response (Doc. 34), despite Judge Ferraro’s R&R specifically ordering that “[n]o reply brief shall be filed on objections unless leave is 27 granted by the district court.” Petitioner did not seek leave to file his reply; accordingly, the Court will not consider it. See Fed. R. Civ. P. 72(b)(2) (providing that petitioner may 28 object to R&R and respondent may respond, but not providing reply to such response); see also 28 U.S.C. § 636(b)(1). 1 or Surety (District Judge Hearing Requested)” (Doc. 37). The Court will deny those 2 motions. 3 Report and Recommendation 4 As a threshold matter, as to any new evidence, arguments, and issues that were not 5 timely and properly raised before United States Magistrate Judge Ferraro, the Court 6 exercises its discretion to not consider those matters and considers them waived. See 7 United States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000). In Howell, the United 8 States Court of Appeals for the Ninth Circuit explained: 9 [A] district court has discretion, but is not required, to consider 10 evidence presented for the first time in a party’s objection to a 11 magistrate judge’s recommendation. . . . . 12 [I]n providing for a de novo determination rather than 13 de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial 14 discretion, chose to place on a magistrate judge's proposed 15 findings and recommendations. . . . The magistrate judge system was designed to alleviate the workload of district 16 courts. To require a district court to consider evidence not previously presented to the magistrate judge would effectively 17 nullify the magistrate judge’s consideration of the matter and 18 would not help to relieve the workload of the district court. Systemic efficiencies would be frustrated and the magistrate 19 judge’s role reduced to that of a mere dress rehearser if a party 20 were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round. Equally important, 21 requiring the district court to hear evidence not previously 22 presented to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair to permit a 23 litigant to set its case in motion before the magistrate, wait to 24 see which way the wind was blowing, and—having received an unfavorable recommendation—shift gears before the 25 district judge. 26 27 Id. (internal citations and quotations omitted); see also United States v. Reyna-Tapia, 328 28 F.3d 1114, 1122 (9th Cir. 2003) (“Finally, it merits re-emphasis that the underlying purpose - 2 - 1 of the Federal Magistrates Act is to improve the effective administration of justice.”).2 2 As to the objections filed by Petitioner, the Court has conducted a de novo review 3 of the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 4 [the Report and Recommendation], any party may serve and file written objections to such 5 proposed findings and recommendations as provided by rules of court. A judge of the court 6 shall make a de novo determination of those portions of the report or specified proposed 7 findings or recommendations to which objection is made. A judge of the court may accept, 8 reject, or modify, in whole or in part, the findings or recommendations made by the 9 magistrate judge. The judge may also receive further evidence or recommit the matter to 10 the magistrate judge with instructions.”). 11 In addition to reviewing the R&R and any objections and responsive briefing 12 thereto, the Court’s de novo review of the record includes review of the record and 13 authority before United States Magistrate Judge Ferraro which led to the R&R in this case. 14 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 15 objections to be without merit, rejects those objections, and adopts United States 16 Magistrate Judge Ferraro’s R&R in its entirety. See, e.g., United States v. Rodriguez, 888 17 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo review of the 18 subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on the record 19 compiled by the magistrate. Rodriguez treats adoption of the magistrate’s report as a sign 20 that he has not received his due. Yet we see no reason to infer abdication from adoption. 21 On occasion this court affirms a judgment on the basis of the district court’s opinion. 22 Affirming by adoption does not imply that we have neglected our duties; it means, rather, 23 that after independent review we came to the same conclusions as the district judge for the 24 reasons that judge gave, rendering further explanation otiose. When the district judge, after 25
27 2Assuming, arguendo, that such matters were not subject to waiver, the Court (in the alternative) has nonetheless conducted a de novo review, and upon review of the record 28 and authority herein, rejects these issues and adopts the R&R in its entirety. - 3 - 1 reviewing the record in the light of the objections to the report, reaches the magistrate’s 2 conclusions for the magistrate’s reasons, it makes sense to adopt the report, sparing 3 everyone another round of paper.”); see also Bratcher v. Bray-Doyle Independent School 4 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 5 is statutorily and constitutionally required when written objections to a magistrate’s report 6 are timely filed with the district court . . . . The district court’s duty in this regard is 7 satisfied only by considering the actual testimony [or other relevant evidence in the record], 8 and not by merely reviewing the magistrate’s report and recommendations. On the other 9 hand, we presume the district court knew of these requirements, so the express references 10 to de novo review in its order must be taken to mean it properly considered the pertinent 11 portions of the record, absent some clear indication otherwise. Plaintiff contends . . . the 12 district court's [terse] order indicates the exercise of less than de novo review. . . . 13 [However,] brevity does not warrant look[ing] behind a district court’s express statement 14 that it engaged in a de novo review of the record.” (internal citations and quotations 15 omitted).); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that 16 the district court judge did not review the magistrate’s report de novo . . . . There is no 17 evidence that the district court did not conduct a de novo review. Without any evidence to 18 the contrary . . . we will not assume that the district court did not conduct the proper 19 review.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) (“When a party timely 20 objects to a magistrate judge’s report and recommendation, the district court is required to 21 make a de novo review of the record related to the objections, which requires more than 22 merely reviewing the report and recommendation. This court presumes that the district 23 court properly performs its review and will affirm the district court’s approval of the 24 magistrate’s recommendation absent evidence to the contrary. The burden is on the 25 challenger to make a prima facie case that de novo review was not had.” (internal citations 26 and quotations omitted)); Murphy v. Int’l Bus. Machines Corp., 23 F.3d 719, 722 (2nd Cir. 27 1994) (“We . . . reject Murphy’s procedural challenges to the granting of summary 28 judgment . . . . Murphy’s contention that the district judge did not properly consider her - 4 - 1 objections to the magistrate judge's report . . . lacks merit. The judge’s brief order 2 mentioned that objections had been made and overruled. We do not construe the brevity 3 of the order as an indication that the objections were not given due consideration, especially 4 in light of the correctness of that report and the evident lack of merit in Murphy’s 5 objections.”).3 6 Before Petitioner can appeal this Court's judgment, a certificate of appealability 7 must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). The district court that 8 rendered a judgment denying the petition made pursuant to § 2254 must either issue a 9 certificate of appealability or state why a certificate should not issue. See id. Additionally, 10 § 2253(c)(2) provides that a certificate may issue “only if the applicant has made a 11 substantial showing of the denial of a constitutional right.” In the certificate, the court must 12 indicate which specific issues satisfy this showing. See § 2253(c)(3). A substantial 13
14 3See also Pinkston v. Madry, 440 F.3d 879, 893-94 (7th Cir. 2006) (the district 15 court’s assurance, in a written order, that the court has complied with the de novo review requirements of the statute in reviewing the magistrate judge’s proposed findings and 16 recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on appeal; emphasizing that “[i]t is clear that Pinkston’s argument in this regard is nothing 17 more than a collateral attack on the magistrate’s reasoning, masquerading as an assault on the district court’s entirely acceptable decision to adopt the magistrate’s opinion instead of 18 conducting an evidentiary hearing on its own. However, the law requires the district judge to do no such thing.”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The 19 district court's order is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed. R. Civ. P. 72(b) requires the district court to make any specific findings; the district court must 20 merely conduct a de novo review of the record . . . It is common practice among district judges . . . to [issue a terse order stating that it conducted a de novo review as to 21 objections] . . . and adopt the magistrate judges’ recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could 22 add little of value to that analysis. We cannot interpret the district court’s [terse] statement as establishing that it failed to perform the required de novo review. We hold that although 23 the district court's decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate's recommendation de novo.” (internal citations and quotations 24 omitted)); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge’s 25 report and recommendations to which objections have been filed. But this de novo determination is not the same as a de novo hearing. . . . [I]f following a review of the 26 record the district court is satisfied with the magistrate judge’s findings and recommendations it may in its discretion treat those findings and recommendations as its 27 own.”).
- 5 - 1 showing is made when the resolution of an issue of appeal is debatable among reasonable 2 jurists, if courts could resolve the issues differently, or if the issue deserves further 3 proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review of the 4 record in light of the standards for granting a certificate of appealability, the Court 5 concludes that a certificate shall not issue as the resolution of the petition is not debatable 6 among reasonable jurists and does not merit further proceedings. 7 “Renewed Motion for Appointment of Counsel” 8 Petitioner’s Renewed Motion for Appointment of Counsel is substantively a motion 9 for reconsideration of Judge Ferraro’s June 16, 2021 Order (Doc. 28) denying his “Motion 10 for Appointment of Counsel and/or an Investigator” (Doc. 26). Although the Federal Rules 11 of Civil Procedure do not expressly allow for motions to reconsider, the Court will consider 12 this a motion under Rule 60(b). Under Rule 60(b), a party may seek relief from a final 13 judgment, order, or proceeding for the following reasons: 14 (1) mistake, inadvertence, surprise, or excusable neglect; 15 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial 16 under Rule 59(b); 17 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 18 (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it 19 is based on an earlier judgment that has been reversed or 20 vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 21 Rule 60(b) does not allow relief from an order simply because a party disagrees with the 22 Court’s reasoning. See United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982) (“Rule 23 60(b) does not authorize a motion merely for reconsideration of a legal issue.”). Petitioner 24 has not demonstrated any of the above reasons support reconsidering Judge Ferraro’s order 25 denying his motion. Indeed, Judge Ferraro correctly noted the Petition was fully briefed 26 27 28 - 6 - 1 four months before Petitioner requested counsel.4 Therefore, Petitioner was able to 2 articulate his arguments and did not demonstrate justice required the appointment of 3 counsel. 4 Nonetheless, to the extent Petitioner’s instant motion could be interpreted as 5 requesting the Court to appoint counsel and/or an investigator at this stage of litigation, his 6 request is moot, given the Court’s disposition of his Petition, and the Report and 7 Recommendation, and Petitioner’s Objections. Therefore, this motion (Doc. 35) is denied. 8 “Motion to Expand the Record Pursuant to Habeas Rule 7” 9 Petitioner requests that the Court “expand the record with the proffered evidence 10 pertaining to specific claims” pursuant to Rule 7 of the Rules Governing § 2254 Cases 11 (“Habeas Rules”). (Doc. 36 at 1.) He also appears to request an evidentiary hearing 12 pursuant to Habeas Rule 8. (Id.) Rule 7 provides: “If the petition is not dismissed, the 13 judge may direct the parties to expand the record by submitting additional materials relating 14 to the petition. The judge may require that these materials be authenticated.” And, Rule 8 15 provides: “If the petition is not dismissed, the judge must review the answer, any transcripts 16 and records of state-court proceedings, and any materials submitted under Rule 7 to 17 determine whether an evidentiary hearing is warranted.” That is, both Rules 7 and 8 allow 18 for expansion of the record and a hearing if the habeas petition is not dismissed. For the 19 reasons explained above, the Petition in this case is dismissed. Therefore, the Court denies 20 Petitioner’s requests to expand the record and set a hearing. 21 “Motion to Release on Own Recognizance or Surety” 22 Petitioner “requests that this Court order[] Petitioner’s release on his own 23 recognizance or surety” and requests a hearing. (Doc. 37 at 1.) Given the dismissal of the 24 Petition, this motion is also denied. 25 Accordingly, IT IS HEREBY ORDERED as follows: 26
27 4Petitioner’s first request for appointment of counsel was before Judge Rosemary 28 Márquez, and she properly denied that request as premature. - 7 - (1) United States Magistrate Judge Ferraro’s Report and Recommendation (Doc. 29) is
3 accepted and adopted in its entirety. (2) Petitioner’s objections are overruled and rejected. ‘ (3) Petitioner’s § 2254 habeas petition (Doc. 1) is DENIED and this case is ° DISMISSED with prejudice. ° (4) Petitioner’s Renewed Motion for Appointment of Counsel (Doc. 35) is DENIED. (5) Petitioner’s Motion to Expand the Record (Doc. 36) is DENIED. 8 (6) Petitioner’s Motion to Release on Own Recognizance or Surety (Doc. 37) is DENIED. 10 (7) A Certificate of Appealability is denied and shall not issue. iM (8) The Clerk of the Court shall enter judgment and close the file in this case. 12 Dated this 8th day of September, 2021. 13 14 .
16 Honorable Scott H. Rash 17 _/ United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -8-