Turner v. Cole

• Court: District Court, D. Arizona
• Decided: June 17, 2022
• Docket: 2:22-cv-00178
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Joseph Turner, No. CV-22-00178-PHX-JAT

10 Petitioner, ORDER

11 v.

12 P. Cole, et al.,

13 Respondents. 14 15 Petitioner filed a habeas petition pursuant to 28 U.S.C. § 2241. The Magistrate 16 Judge to whom this case was referred issued a Report and Recommendation (“R&R”) 17 recommending that the Petition be dismissed. (Doc. 10 at 5). 18 In summary, Petitioner claims he has earned good time credits toward his release 19 date. (Doc. 10 at 3). Petitioner acknowledges that those credits cannot be applied until he 20 has enough credits to be released. (Id.). Petitioner acknowledges that he has not yet 21 crossed that threshold. (Id.). Nonetheless, Petitioner brings this Petition, “…asking that 22 my FSA [time credits] earned between December 18, 2018 and December 31, 2021 be 23 properly calculated now and verified, in writing, to ensure that there will be no 24 discrepancies when I am eligible to apply them.” (Doc. 8 at 2). 25 Respondents answered and moved to dismiss arguing that the claims in the Petition 26 are not ripe. (Doc. 7 at 8). Respondents argue that: “Even if Petitioner’s claim that he has 27 earned and is entitled to have applied 330 FSA [time credits] is accurate, he would not be 28 eligible for any pre-release placement on home confinement, halfway house, or early 1 supervised released for over four years.” (Id.). 2 The R&R agrees with Respondents that this claim is not ripe. (Doc. 10 at 4). Thus, 3 the R&R recommends that this Court grant Respondents’ motion to dismiss and dismiss 4 this case without prejudice. Neither party objected to this recommendation and the time to 5 object has expired. 6 This Court “may accept, reject, or modify, in whole or in part, the findings or 7 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 8 the district judge must review the magistrate judge’s findings and recommendations de 9 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 10 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 11 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 12 de novo review of factual and legal issues is required if objections are made, ‘but not 13 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 14 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 15 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 16 not required to conduct “any review at all . . . of any issue that is not the subject of an 17 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 18 § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 19 and recommendation] to which objection is made.”).1 20 Because neither party objected, the Court accepts the R&R. Accordingly, 21 IT IS ORDERED that the Report and Recommendation (Doc. 10) is accepted and 22 adopted; Respondents’ Motion to Dismiss (Doc. 7) is granted; this case is dismissed 23 1 The Court notes that the Notes of the Advisory Committee on Rules appear to suggest a 24 clear error standard of review under Federal Rule of Civil Procedure 72(b), citing Campbell. Fed. R. Civ. P. 72(b), NOTES OF ADVISORY COMMITTEE ON RULES— 25 1983 citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879 (The court “need only satisfy itself that there is no clear error on the 26 face of the record in order to accept the recommendation.”). The court in Campbell, however, appears to delineate a standard of review specific to magistrate judge findings in 27 the motion to suppress context. See Campbell, 501 F.2d at 206–207. Because this case is not within this limited context, this Court follows the Ninth Circuit’s en banc decision in 28 Reyna-Tapia on the standard of review for an R&R. 1 || without prejudice and the Clerk of the Court shall enter judgment accordingly. 2 Dated this 16th day of June, 2022. 3

° James A. Teilborg 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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