1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA
7 Clyde R. Hollingshead, No. CV 18-188-TUC-JAS (EJM)
8 Petitioner, ORDER
9 v.
10 David Shinn, et al.
11 Respondents. 12 13 DISCUSSION 14 Pending before the Court is a Report and Recommendation issued by United States 15 Magistrate Judge Markovich. The Report and Recommendation recommends denying 16 Petitioner’s § 2254 habeas petition. Petitioner filed objections to the Report and 17 Recommendation.1 18 As a threshold matter, as to any new evidence, arguments, and issues that were not 19 timely and properly raised before United States Magistrate Judge Markovich, the Court 20 exercises its discretion to not consider those matters and considers them waived. United 21 States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, 22 but is not required, to consider evidence presented for the first time in a party's objection 23 to a magistrate judge's recommendation . . . [I]n making a decision on whether to consider 24 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 25 for a de novo determination rather than de novo hearing, Congress intended to permit 26 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 27 place on a magistrate judge's proposed findings and recommendations . . . The magistrate
28 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 1 judge system was designed to alleviate the workload of district courts . . . To require a 2 district court to consider evidence not previously presented to the magistrate judge would 3 effectively nullify the magistrate judge's consideration of the matter and would not help to 4 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 5 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 6 feint and weave at the initial hearing, and save its knockout punch for the second round . . 7 . Equally important, requiring the district court to hear evidence not previously presented 8 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 9 to permit a litigant to set its case in motion before the magistrate, wait to see which way 10 the wind was blowing, and—having received an unfavorable recommendation—shift gears 11 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 12 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 13 Magistrates Act is to improve the effective administration of justice.”).2 14 As to the objections filed by Petitioner, the Court has conducted a de novo review 15 of the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 16 [the Report and Recommendation], any party may serve and file written objections to such 17 proposed findings and recommendations as provided by rules of court. A judge of the court 18 shall make a de novo determination of those portions of the report or specified proposed 19 findings or recommendations to which objection is made. A judge of the court may accept, 20 reject, or modify, in whole or in part, the findings or recommendations made by the 21 magistrate judge. The judge may also receive further evidence or recommit the matter to 22 the magistrate judge with instructions.”). 23 In addition to reviewing the Report and Recommendation and any objections and 24 responsive briefing thereto, the Court’s de novo review of the record includes review of the 25 record and authority before United States Magistrate Judge Markovich which led to the 26 Report and Recommendation in this case.
27 2 Assuming, 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 Report and Recommendation in its entirety. 1 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 2 objections to be without merit, rejects those objections, and adopts United States 3 Magistrate Judge Markovich’s Report and Recommendation in its entirety. See, e.g., 4 United States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by 5 statute to de novo review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court 6 may provide this on the record compiled by the magistrate. Rodriguez treats adoption of 7 the magistrate's report as a sign that he has not received his due. Yet we see no reason to 8 infer abdication from adoption. On occasion this court affirms a judgment on the basis of 9 the district court's opinion. Affirming by adoption does not imply that we have neglected 10 our duties; it means, rather, that after independent review we came to the same conclusions 11 as the district judge for the reasons that judge gave, rendering further explanation otiose. 12 When the district judge, after reviewing the record in the light of the objections to the 13 report, reaches the magistrate's conclusions for the magistrate's reasons, it makes sense to 14 adopt the report, sparing everyone another round of paper.”); Bratcher v. Bray-Doyle 15 Independent School Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) 16 (“De novo review is statutorily and constitutionally required when written objections to a 17 magistrate's report are timely filed with the district court . . . The district court's duty in this 18 regard is satisfied only by considering the actual testimony [or other relevant evidence in 19 the record], and not by merely reviewing the magistrate's report and recommendations . . . 20 On the other hand, we presume the district court knew of these requirements, so the express 21 references to de novo review in its order must be taken to mean it properly considered the 22 pertinent portions of the record, absent some clear indication otherwise . . . Plaintiff 23 contends . . . the district court's [terse] order indicates the exercise of less than de novo 24 review . . . [However,] brevity does not warrant look[ing] behind a district court's express 25 statement that it engaged in a de novo review of the record.”); Murphy v. International 26 Business Machines Corp., 23 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's 27 procedural challenges to the granting of summary judgment . . . Murphy's contention that 28 the district judge did not properly consider her objections to the magistrate judge's report . 1 . . lacks merit. The judge's brief order mentioned that objections had been made and 2 overruled. We do not construe the brevity of the order as an indication that the objections 3 were not given due consideration, especially in light of the correctness of that report and 4 the evident lack of merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 5 633 (8th Cir.
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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA
7 Clyde R. Hollingshead, No. CV 18-188-TUC-JAS (EJM)
8 Petitioner, ORDER
9 v.
10 David Shinn, et al.
11 Respondents. 12 13 DISCUSSION 14 Pending before the Court is a Report and Recommendation issued by United States 15 Magistrate Judge Markovich. The Report and Recommendation recommends denying 16 Petitioner’s § 2254 habeas petition. Petitioner filed objections to the Report and 17 Recommendation.1 18 As a threshold matter, as to any new evidence, arguments, and issues that were not 19 timely and properly raised before United States Magistrate Judge Markovich, the Court 20 exercises its discretion to not consider those matters and considers them waived. United 21 States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, 22 but is not required, to consider evidence presented for the first time in a party's objection 23 to a magistrate judge's recommendation . . . [I]n making a decision on whether to consider 24 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 25 for a de novo determination rather than de novo hearing, Congress intended to permit 26 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 27 place on a magistrate judge's proposed findings and recommendations . . . The magistrate
28 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 1 judge system was designed to alleviate the workload of district courts . . . To require a 2 district court to consider evidence not previously presented to the magistrate judge would 3 effectively nullify the magistrate judge's consideration of the matter and would not help to 4 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 5 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 6 feint and weave at the initial hearing, and save its knockout punch for the second round . . 7 . Equally important, requiring the district court to hear evidence not previously presented 8 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 9 to permit a litigant to set its case in motion before the magistrate, wait to see which way 10 the wind was blowing, and—having received an unfavorable recommendation—shift gears 11 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 12 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 13 Magistrates Act is to improve the effective administration of justice.”).2 14 As to the objections filed by Petitioner, the Court has conducted a de novo review 15 of the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 16 [the Report and Recommendation], any party may serve and file written objections to such 17 proposed findings and recommendations as provided by rules of court. A judge of the court 18 shall make a de novo determination of those portions of the report or specified proposed 19 findings or recommendations to which objection is made. A judge of the court may accept, 20 reject, or modify, in whole or in part, the findings or recommendations made by the 21 magistrate judge. The judge may also receive further evidence or recommit the matter to 22 the magistrate judge with instructions.”). 23 In addition to reviewing the Report and Recommendation and any objections and 24 responsive briefing thereto, the Court’s de novo review of the record includes review of the 25 record and authority before United States Magistrate Judge Markovich which led to the 26 Report and Recommendation in this case.
27 2 Assuming, 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 Report and Recommendation in its entirety. 1 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 2 objections to be without merit, rejects those objections, and adopts United States 3 Magistrate Judge Markovich’s Report and Recommendation in its entirety. See, e.g., 4 United States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by 5 statute to de novo review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court 6 may provide this on the record compiled by the magistrate. Rodriguez treats adoption of 7 the magistrate's report as a sign that he has not received his due. Yet we see no reason to 8 infer abdication from adoption. On occasion this court affirms a judgment on the basis of 9 the district court's opinion. Affirming by adoption does not imply that we have neglected 10 our duties; it means, rather, that after independent review we came to the same conclusions 11 as the district judge for the reasons that judge gave, rendering further explanation otiose. 12 When the district judge, after reviewing the record in the light of the objections to the 13 report, reaches the magistrate's conclusions for the magistrate's reasons, it makes sense to 14 adopt the report, sparing everyone another round of paper.”); Bratcher v. Bray-Doyle 15 Independent School Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) 16 (“De novo review is statutorily and constitutionally required when written objections to a 17 magistrate's report are timely filed with the district court . . . The district court's duty in this 18 regard is satisfied only by considering the actual testimony [or other relevant evidence in 19 the record], and not by merely reviewing the magistrate's report and recommendations . . . 20 On the other hand, we presume the district court knew of these requirements, so the express 21 references to de novo review in its order must be taken to mean it properly considered the 22 pertinent portions of the record, absent some clear indication otherwise . . . Plaintiff 23 contends . . . the district court's [terse] order indicates the exercise of less than de novo 24 review . . . [However,] brevity does not warrant look[ing] behind a district court's express 25 statement that it engaged in a de novo review of the record.”); Murphy v. International 26 Business Machines Corp., 23 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's 27 procedural challenges to the granting of summary judgment . . . Murphy's contention that 28 the district judge did not properly consider her objections to the magistrate judge's report . 1 . . lacks merit. The judge's brief order mentioned that objections had been made and 2 overruled. We do not construe the brevity of the order as an indication that the objections 3 were not given due consideration, especially in light of the correctness of that report and 4 the evident lack of merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 5 633 (8th Cir. 2001) (“When a party timely objects to a magistrate judge's report and 6 recommendation, the district court is required to make a de novo review of the record 7 related to the objections, which requires more than merely reviewing the report and 8 recommendation . . . This court presumes that the district court properly performs its review 9 and will affirm the district court's approval of the magistrate's recommendation absent 10 evidence to the contrary . . . The burden is on the challenger to make a prima facie case 11 that de novo review was not had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) 12 (“Brunig also claims that the district court judge did not review the magistrate's report de 13 novo . . . There is no evidence that the district court did not conduct a de novo review. 14 Without any evidence to the contrary . . . we will not assume that the district court did not 15 conduct the proper review.”).3
16 3 See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (the district court's assurance, in a written order, that the court has complied with the de novo review 17 requirements of the statute in reviewing the magistrate judge's proposed findings and recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on 18 appeal; emphasizing that “[i]t is clear that Pinkston's argument in this regard is nothing more than a collateral attack on the magistrate's reasoning, masquerading as an assault on 19 the district court's entirely acceptable decision to adopt the magistrate's opinion . . .”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court's order 20 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 merely conduct a de 21 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 objections] . . . and adopt the 22 magistrate judges' recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that 23 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 the district court's 24 decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate's recommendation de novo.”); Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 25 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge's report and recommendations to which objections have been filed. 26 But this de novo determination is not the same as a de novo hearing . . . [I]f following a review of the record the district court is satisfied with the magistrate judge's findings and 27 recommendations it may in its discretion treat those findings and recommendations as its own.”). 28 1 Before Petitioner can appeal this Court's judgment, a certificate of appealability 2|| must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that || rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either issue a certificate of appealability or state why a certificate should not issue. See id. || Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the || applicant has made a substantial showing of the denial of a constitutional right." In the || certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C. 8 || §2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is 9|| debatable among reasonable jurists, if courts could resolve the issues differently, or if the 10 || issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). 11 || Upon review of the record in light of the standards for granting a certificate of appealability, || the Court concludes that a certificate shall not issue as the resolution of the petition is not 13 || debatable among reasonable jurists and does not deserve further proceedings. CONCLUSION 15 Accordingly, IT IS HEREBY ORDERED as follows: 16 (1) United States Magistrate Judge Markovich’s Report and Recommendation 1s 17 accepted and adopted in its entirety. 18 (2) Petitioner’s objections are rejected. 19 (3) Petitioner’s §2254 habeas petition is denied and this case is dismissed with 20 prejudice. 21 (4) A Certificate of Appealability is denied and shall not issue. 22 (5) The Clerk of the Court shall enter judgment and close the file in this case. 23 Dated this 9th day of March, 2021. 24 textes Honorable James A. Soto 27 United States District Judge 28
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