1 2 3 4 5
9 Manuel Jesus Pesqueira, No. CV-19-00047-TUC-JAS
10 Petitioner, ORDER
11 v.
12 State of Arizona, et al.,
13 Respondents. 14 15 The Court is in receipt of Petitioner’s Motion for Review and Notice (Doc. 37). 16 Petitioner claims that he received the Report and Recommendation (“R&R”) that the Court 17 previously adopted (Doc. 33) on November 18, 2021, and this his Objections (Doc. 35) 18 were timely. Respondents filed a Motion to Strike Petitioner’s Objections (Doc. 36), 19 arguing that they are untimely and not in compliance with Court Rules. The Court agrees 20 with Respondents on both counts. However, after reviewing the docket, the Court will 21 withdraw its previous Order (Doc. 33) and consider Petitioner’s claims under the standard 22 applicable to those with timely filed objections. 24 Pending before the Court is a Report and Recommendation issued by United States 25 Magistrate Macdonald. The Report and Recommendation recommends denying 26 Petitioner’s § 2254 habeas petition. Petitioner filed objections to the Report and 27 Recommendation.1
28 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 1 As a threshold matter, as to any new evidence, arguments, and issues that were not 2 timely and properly raised before United States Magistrate Macdonald, the Court exercises 3 its discretion to not consider those matters and considers them waived. United States v. 4 Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not 5 required, to consider evidence presented for the first time in a party's objection to a 6 magistrate judge's recommendation . . . [I]n making a decision on whether to consider 7 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 8 for a de novo determination rather than de novo hearing, Congress intended to permit 9 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 10 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 11 judge system was designed to alleviate the workload of district courts . . . To require a 12 district court to consider evidence not previously presented to the magistrate judge would 13 effectively nullify the magistrate judge's consideration of the matter and would not help to 14 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 15 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 16 feint and weave at the initial hearing, and save its knockout punch for the second round . . 17 . Equally important, requiring the district court to hear evidence not previously presented 18 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 19 to permit a litigant to set its case in motion before the magistrate, wait to see which way 20 the wind was blowing, and—having received an unfavorable recommendation—shift gears 21 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 22 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 23 Magistrates Act is to improve the effective administration of justice.”). 24 Assuming that there has been no waiver, the Court has conducted a de novo review 25 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 26 being served with [the Report and Recommendation], any party may serve and file written 27 objections to such proposed findings and recommendations as provided by rules of court. 28 A judge of the court shall make a de novo determination of those portions of the report or 1 specified proposed findings or recommendations to which objection is made. A judge of 2 the court may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge. The judge may also receive further 4 evidence or recommit the matter to the magistrate judge with instructions.”). 5 In addition to reviewing the Report and Recommendation and any objections and 6 responsive briefing thereto, the Court’s de novo review of the record includes review of the 7 record and authority before United States Magistrate Judge Macdonald which led to the 8 Report and Recommendation in this case. 9 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 10 objections to be without merit, rejects those objections, and adopts United States 11 Magistrate Judge Macdonald’s Report and Recommendation. See, e.g., United States v. 12 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 13 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 14 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 15 as a sign that he has not received his due. Yet we see no reason to infer abdication from 16 adoption. On occasion this court affirms a judgment on the basis of the district court's 17 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 18 rather, that after independent review we came to the same conclusions as the district judge 19 for the reasons that judge gave, rendering further explanation otiose. When the district 20 judge, after reviewing the record in the light of the objections to the report, reaches the 21 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 22 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 23 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 24 is statutorily and constitutionally required when written objections to a magistrate's report 25 are timely filed with the district court . . . The district court's duty in this regard is satisfied 26 only by considering the actual testimony [or other relevant evidence in the record], and not 27 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 28 we presume the district court knew of these requirements, so the express references to de 1 novo review in its order must be taken to mean it properly considered the pertinent portions 2 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 3 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 4 brevity does not warrant look[ing] behind a district court's express statement that it engaged 5 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 6 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 7 granting of summary judgment . . . Murphy's contention that the district judge did not 8 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 9 brief order mentioned that objections had been made and overruled. We do not construe 10 the brevity of the order as an indication that the objections were not given due 11 consideration, especially in light of the correctness of that report and the evident lack of 12 merit in Murphy's objections.”); Gonzales-Perez v.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5
9 Manuel Jesus Pesqueira, No. CV-19-00047-TUC-JAS
10 Petitioner, ORDER
11 v.
12 State of Arizona, et al.,
13 Respondents. 14 15 The Court is in receipt of Petitioner’s Motion for Review and Notice (Doc. 37). 16 Petitioner claims that he received the Report and Recommendation (“R&R”) that the Court 17 previously adopted (Doc. 33) on November 18, 2021, and this his Objections (Doc. 35) 18 were timely. Respondents filed a Motion to Strike Petitioner’s Objections (Doc. 36), 19 arguing that they are untimely and not in compliance with Court Rules. The Court agrees 20 with Respondents on both counts. However, after reviewing the docket, the Court will 21 withdraw its previous Order (Doc. 33) and consider Petitioner’s claims under the standard 22 applicable to those with timely filed objections. 24 Pending before the Court is a Report and Recommendation issued by United States 25 Magistrate Macdonald. The Report and Recommendation recommends denying 26 Petitioner’s § 2254 habeas petition. Petitioner filed objections to the Report and 27 Recommendation.1
28 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 1 As a threshold matter, as to any new evidence, arguments, and issues that were not 2 timely and properly raised before United States Magistrate Macdonald, the Court exercises 3 its discretion to not consider those matters and considers them waived. United States v. 4 Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, but is not 5 required, to consider evidence presented for the first time in a party's objection to a 6 magistrate judge's recommendation . . . [I]n making a decision on whether to consider 7 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 8 for a de novo determination rather than de novo hearing, Congress intended to permit 9 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 10 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 11 judge system was designed to alleviate the workload of district courts . . . To require a 12 district court to consider evidence not previously presented to the magistrate judge would 13 effectively nullify the magistrate judge's consideration of the matter and would not help to 14 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 15 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 16 feint and weave at the initial hearing, and save its knockout punch for the second round . . 17 . Equally important, requiring the district court to hear evidence not previously presented 18 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 19 to permit a litigant to set its case in motion before the magistrate, wait to see which way 20 the wind was blowing, and—having received an unfavorable recommendation—shift gears 21 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 22 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 23 Magistrates Act is to improve the effective administration of justice.”). 24 Assuming that there has been no waiver, the Court has conducted a de novo review 25 as to Petitioner’s objections. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after 26 being served with [the Report and Recommendation], any party may serve and file written 27 objections to such proposed findings and recommendations as provided by rules of court. 28 A judge of the court shall make a de novo determination of those portions of the report or 1 specified proposed findings or recommendations to which objection is made. A judge of 2 the court may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge. The judge may also receive further 4 evidence or recommit the matter to the magistrate judge with instructions.”). 5 In addition to reviewing the Report and Recommendation and any objections and 6 responsive briefing thereto, the Court’s de novo review of the record includes review of the 7 record and authority before United States Magistrate Judge Macdonald which led to the 8 Report and Recommendation in this case. 9 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 10 objections to be without merit, rejects those objections, and adopts United States 11 Magistrate Judge Macdonald’s Report and Recommendation. See, e.g., United States v. 12 Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to de novo 13 review of the subject. Under Raddatz [447 U.S. 667 (1980)] the court may provide this on 14 the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's report 15 as a sign that he has not received his due. Yet we see no reason to infer abdication from 16 adoption. On occasion this court affirms a judgment on the basis of the district court's 17 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 18 rather, that after independent review we came to the same conclusions as the district judge 19 for the reasons that judge gave, rendering further explanation otiose. When the district 20 judge, after reviewing the record in the light of the objections to the report, reaches the 21 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 22 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 23 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 24 is statutorily and constitutionally required when written objections to a magistrate's report 25 are timely filed with the district court . . . The district court's duty in this regard is satisfied 26 only by considering the actual testimony [or other relevant evidence in the record], and not 27 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 28 we presume the district court knew of these requirements, so the express references to de 1 novo review in its order must be taken to mean it properly considered the pertinent portions 2 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 3 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 4 brevity does not warrant look[ing] behind a district court's express statement that it engaged 5 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 6 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 7 granting of summary judgment . . . Murphy's contention that the district judge did not 8 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 9 brief order mentioned that objections had been made and overruled. We do not construe 10 the brevity of the order as an indication that the objections were not given due 11 consideration, especially in light of the correctness of that report and the evident lack of 12 merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) 13 (“When a party timely objects to a magistrate judge's report and recommendation, the 14 district court is required to make a de novo review of the record related to the objections, 15 which requires more than merely reviewing the report and recommendation . . . This court 16 presumes that the district court properly performs its review and will affirm the district 17 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 18 The burden is on the challenger to make a prima facie case that de novo review was not 19 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 20 district court judge did not review the magistrate's report de novo . . . There is no evidence 21 that the district court did not conduct a de novo review. Without any evidence to the 22 contrary . . . we will not assume that the district court did not conduct the proper review.”).2
23 2 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 24 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 25 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 26 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 27 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 28 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 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 3 rendered a judgment denying the petition made pursuant to 28 U.S.C. §2254 must either 4 issue a certificate of appealability or state why a certificate should not issue. See id. 5 Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate may issue "only if the 6 applicant has made a substantial showing of the denial of a constitutional right." In the 7 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, 12 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. 15 Accordingly, IT IS HEREBY ORDERED as follows: 16 (1) The Court’s previous Order (Doc. 33) is withdrawn. 17 (2) Petitioner’s Motion for Review and Notice (Doc. 37) and Respondents Motion to 18 Strike Petitioner’s Objections (Doc. 36) are denied as moot. 19 (3) United States Magistrate Judge Macdonald’s Report and Recommendation (Doc. 20 32) is accepted and adopted. 21 (4) Petitioner’s objections are rejected.
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 (5) Petitioner’s §2254 habeas petition is denied and this case is dismissed with 2 prejudice. 3 (6) A Certificate of Appealability is denied and shall not issue. 4 (7) The Clerk of the Court shall enter judgment and close the file in this case. 5 Dated this 28th day of December, 2021. 6 7 8 A arhen = Honorable James A. Soto 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-6-