1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Danny Ray Morris, No. CV 20-322-TUC-JAS (EJM)
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.
13 Respondents. 14 15 DISCUSSION 16 Pending before the Court is a Report and Recommendation issued by United States 17 Magistrate Judge Markovich. The Report and Recommendation recommends denying 18 Petitioner’s § 2254 habeas petition. The Court has reviewed the entire record in this case 19 (see Docs. 1 through 31) and the relevant legal authority bearing on this case. Petitioner 20 filed objections1 to the Report and Recommendation.2 3 21 As a threshold matter, as to any new evidence, arguments, and issues that were not 22 timely and properly raised before United States Magistrate Markovich, the Court exercises
23 1 The Court notes that Petitioner included objections in documents appearing at Docs. 27 and 29; to the extent Petitioner seeks more time to further explain his objections or respond 24 to the State, the request is denied as more time in this case (which has been pending since 2020) is unwarranted and this case is without merit (allowing more time for objections or 25 to respond to the State would be futile). 2 Unless otherwise noted by the Court, internal quotes and citations have been omitted 26 when citing authority throughout this Order. 3 The Court notes that Respondents filed a very limited partial objection only as to equitable 27 tolling/timeliness. See Doc. 26. While the Court sustains Respondents’ objection, the Court does not further address the limited objection in this Order as it is unnecessary 28 inasmuch as Respondents also agree that the Report and Recommendation correctly recommended denying the Petition on other grounds in any event. See id. 1 its discretion to not consider those matters and considers them waived.4 United States v. 2 Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not 3 required, to consider evidence presented for the first time in a party's objection to a 4 magistrate judge's recommendation . . . [I]n making a decision on whether to consider 5 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 6 for a de novo determination rather than de novo hearing, Congress intended to permit 7 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 8 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 9 judge system was designed to alleviate the workload of district courts . . . To require a 10 district court to consider evidence not previously presented to the magistrate judge would 11 effectively nullify the magistrate judge's consideration of the matter and would not help to 12 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 13 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 14 feint and weave at the initial hearing, and save its knockout punch for the second round . . 15 . Equally important, requiring the district court to hear evidence not previously presented 16 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 17 to permit a litigant to set its case in motion before the magistrate, wait to see which way 18 the wind was blowing, and—having received an unfavorable recommendation—shift gears 19 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 20 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 21 Magistrates Act is to improve the effective administration of justice.”).
22 4 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 23 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 24 the Court. See United States v. Ramos, 65 F.4th 427, 435 n. 5 (9th Cir. 2023) (“Ramos's motion for reconsideration argued that the district court failed to conduct de novo review 25 because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the Court exercises its 26 discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses the point. 27 The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's proper 28 analysis in recommending denial of the motion to suppress.”). 1 Assuming that there has been no waiver, the Court has conducted a de novo review 2 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 3 being served with [the Report and Recommendation], any party may serve and file written 4 objections to such proposed findings and recommendations as provided by rules of court. 5 A judge of the court shall make a de novo determination of those portions of the report or 6 specified proposed findings or recommendations to which objection is made. A judge of 7 the court may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge. The judge may also receive further 9 evidence or recommit the matter to the magistrate judge with instructions.”). 10 As referenced above, in addition to reviewing the Report and Recommendation and 11 any objections and responsive briefing thereto, the Court’s de novo review of the record 12 includes review of the record and authority before United States Magistrate Judge 13 Markovich which led to the Report and Recommendation 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 Markovich’s Report and Recommendation. See, e.g., United States v. 17 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 18 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 19 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 20 as a sign that he has not received his due. Yet we see no reason to infer abdication from 21 adoption. On occasion this court affirms a judgment on the basis of the district court's 22 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 23 rather, that after independent review we came to the same conclusions as the district judge 24 for the reasons that judge gave, rendering further explanation otiose. When the district 25 judge, after reviewing the record in the light of the objections to the report, reaches the 26 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 27 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 28 Dist. No.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Danny Ray Morris, No. CV 20-322-TUC-JAS (EJM)
10 Petitioner, ORDER
11 v.
12 David Shinn, et al.
13 Respondents. 14 15 DISCUSSION 16 Pending before the Court is a Report and Recommendation issued by United States 17 Magistrate Judge Markovich. The Report and Recommendation recommends denying 18 Petitioner’s § 2254 habeas petition. The Court has reviewed the entire record in this case 19 (see Docs. 1 through 31) and the relevant legal authority bearing on this case. Petitioner 20 filed objections1 to the Report and Recommendation.2 3 21 As a threshold matter, as to any new evidence, arguments, and issues that were not 22 timely and properly raised before United States Magistrate Markovich, the Court exercises
23 1 The Court notes that Petitioner included objections in documents appearing at Docs. 27 and 29; to the extent Petitioner seeks more time to further explain his objections or respond 24 to the State, the request is denied as more time in this case (which has been pending since 2020) is unwarranted and this case is without merit (allowing more time for objections or 25 to respond to the State would be futile). 2 Unless otherwise noted by the Court, internal quotes and citations have been omitted 26 when citing authority throughout this Order. 3 The Court notes that Respondents filed a very limited partial objection only as to equitable 27 tolling/timeliness. See Doc. 26. While the Court sustains Respondents’ objection, the Court does not further address the limited objection in this Order as it is unnecessary 28 inasmuch as Respondents also agree that the Report and Recommendation correctly recommended denying the Petition on other grounds in any event. See id. 1 its discretion to not consider those matters and considers them waived.4 United States v. 2 Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not 3 required, to consider evidence presented for the first time in a party's objection to a 4 magistrate judge's recommendation . . . [I]n making a decision on whether to consider 5 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 6 for a de novo determination rather than de novo hearing, Congress intended to permit 7 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 8 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 9 judge system was designed to alleviate the workload of district courts . . . To require a 10 district court to consider evidence not previously presented to the magistrate judge would 11 effectively nullify the magistrate judge's consideration of the matter and would not help to 12 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 13 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 14 feint and weave at the initial hearing, and save its knockout punch for the second round . . 15 . Equally important, requiring the district court to hear evidence not previously presented 16 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 17 to permit a litigant to set its case in motion before the magistrate, wait to see which way 18 the wind was blowing, and—having received an unfavorable recommendation—shift gears 19 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 20 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 21 Magistrates Act is to improve the effective administration of justice.”).
22 4 As a general matter, the Court notes that it has had numerous problems with parties in many cases attempting to raise new issues that could have been raised before the United 23 States Magistrate Judge. The Court does not abide such actions, and allowing such actions undermines the Court’s ability to properly manage the hundreds of cases pending before 24 the Court. See United States v. Ramos, 65 F.4th 427, 435 n. 5 (9th Cir. 2023) (“Ramos's motion for reconsideration argued that the district court failed to conduct de novo review 25 because the order adopting the report and recommendation stated that ‘as to any new ... arguments ... not timely ... raised before [the magistrate judge], the Court exercises its 26 discretion to not consider those matters and considers them waived” even though, according to Ramos, the case raised no waiver issue. But this argument misses the point. 27 The fact that the order contained extraneous language does not negate the district court's multiple assertions that it conducted de novo review and the magistrate judge's proper 28 analysis in recommending denial of the motion to suppress.”). 1 Assuming that there has been no waiver, the Court has conducted a de novo review 2 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 3 being served with [the Report and Recommendation], any party may serve and file written 4 objections to such proposed findings and recommendations as provided by rules of court. 5 A judge of the court shall make a de novo determination of those portions of the report or 6 specified proposed findings or recommendations to which objection is made. A judge of 7 the court may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge. The judge may also receive further 9 evidence or recommit the matter to the magistrate judge with instructions.”). 10 As referenced above, in addition to reviewing the Report and Recommendation and 11 any objections and responsive briefing thereto, the Court’s de novo review of the record 12 includes review of the record and authority before United States Magistrate Judge 13 Markovich which led to the Report and Recommendation 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 Markovich’s Report and Recommendation. See, e.g., United States v. 17 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 18 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 19 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 20 as a sign that he has not received his due. Yet we see no reason to infer abdication from 21 adoption. On occasion this court affirms a judgment on the basis of the district court's 22 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 23 rather, that after independent review we came to the same conclusions as the district judge 24 for the reasons that judge gave, rendering further explanation otiose. When the district 25 judge, after reviewing the record in the light of the objections to the report, reaches the 26 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 27 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 28 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 1 is statutorily and constitutionally required when written objections to a magistrate's report 2 are timely filed with the district court . . . The district court's duty in this regard is satisfied 3 only by considering the actual testimony [or other relevant evidence in the record], and not 4 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 5 we presume the district court knew of these requirements, so the express references to de 6 novo review in its order must be taken to mean it properly considered the pertinent portions 7 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 8 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 9 brevity does not warrant look[ing] behind a district court's express statement that it engaged 10 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 11 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 12 granting of summary judgment . . . Murphy's contention that the district judge did not 13 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 14 brief order mentioned that objections had been made and overruled. We do not construe 15 the brevity of the order as an indication that the objections were not given due 16 consideration, especially in light of the correctness of that report and the evident lack of 17 merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) 18 (“When a party timely objects to a magistrate judge's report and recommendation, the 19 district court is required to make a de novo review of the record related to the objections, 20 which requires more than merely reviewing the report and recommendation . . . This court 21 presumes that the district court properly performs its review and will affirm the district 22 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 23 The burden is on the challenger to make a prima facie case that de novo review was not 24 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 25 district court judge did not review the magistrate's report de novo . . . There is no evidence 26 that the district court did not conduct a de novo review. Without any evidence to the 27 contrary . . . we will not assume that the district court did not conduct the proper review.”); 28 United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023) (“Under this statutory scheme [of 1 the Federal Magistrates Act], the district court did what § 636(b) requires: it indicated that 2 it reviewed the record de novo, found no merit to Ramos's objections, and summarily 3 adopted the magistrate judge's analysis in his report and recommendation. We have 4 presumed that district courts conduct proper de novo review where they state they have 5 done so, even if the order fails to specifically address a party's objections.”).5 6 Before Petitioner can appeal this Court's judgment, a certificate of appealability 7 must issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). The district court that 8 rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either 9 issue a certificate of appealability or state why a certificate should not issue. See id. 10 Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the 11 applicant has made a substantial showing of the denial of a constitutional right." In the 12 certificate, the court must indicate which specific issues satisfy this showing. See 28 U.S.C. 13 §2253(c)(3). A substantial showing is made when the resolution of an issue of appeal is 14 debatable among reasonable jurists, if courts could resolve the issues differently, or if the 15 issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
16 5 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 || 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 3 || debatable among reasonable jurists and does not deserve further proceedings. CONCLUSION 5 Accordingly, IT IS HEREBY ORDERED as follows: 6 (1) United States Magistrate Judge Markovich’s Report and Recommendation (Doc. 7 25) is accepted and adopted. 8 (2) Petitioner’s objections are rejected. 9 (3) Petitioner’s §2254 habeas petition is denied and this case is dismissed with 10 prejudice. 11 (4) A Certificate of Appealability is denied and shall not issue. 12 (5) The Clerk of the Court shall enter judgment and close the file in this case. 13 14 Dated this 26th day of September, 2023. 15 A arhen Honorable James A. Soto 18 United States District Judge 19 20 21 22 23 24 25 26 27 28
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