Channel v. Shinn

[5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Michael Allen Channel, Sr., No. CV-20-00165-TUC-JAS 10 Petitioner, ORDER 11 v. 12 David Shinn, 13 Respondent. [14] 15 Pending before the Court is a Report and Recommendation issued by United States 16 Magistrate Judge Rateau. The Report and Recommendation recommends that the Court 17 DENY Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1), DENY a certificate of 18 appealability, and DENY AS MOOT Petitioner’s Motion Requesting Court to Intervene 19 (Doc. 28), Motions Requesting Status (Docs. 30, 32, 35, 36, and 39), Motion LRCiv. 20 7.1(d)(4) (Docs. 37, 40), and Respondent’s Motion to Strike (Doc. 38). Petitioner filed 21 objections to the Report and Recommendation.1 22 As a threshold matter, as to any new evidence, arguments, and issues that were not 23 timely and properly raised before United States Magistrate Judge Rateau, the Court 24 exercises its discretion to not consider those matters and considers them waived.2 United 25 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 26 2 In addition to his Objections, Petitioner filed several other motions after the Report and Recommendation was issued, including a Motion to Expand the Record Notification of 27 Defendant's Use of Case that was Denied, Dismissed with Prejudice March 15th, 2019, “Clear Violation” (Doc. 43), Motion for Legal Status of Motion to Expand the Record 28 Notification of Defendant's Use of Case that was Denied, Dismissed with Prejudice March 15th, 2019, Clear Violation (Doc. 47), Motion for a Legal Answer of a Legal Question, 1 States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has discretion, 2 but is not required, to consider evidence presented for the first time in a party's objection 3 to a magistrate judge's recommendation . . . [I]n making a decision on whether to consider 4 newly offered evidence, the district court must . . . exercise its discretion . . . [I]n providing 5 for a de novo determination rather than de novo hearing, Congress intended to permit 6 whatever reliance a district judge, in the exercise of sound judicial discretion, chose to 7 place on a magistrate judge's proposed findings and recommendations . . . The magistrate 8 judge system was designed to alleviate the workload of district courts . . . To require a 9 district court to consider evidence not previously presented to the magistrate judge would 10 effectively nullify the magistrate judge's consideration of the matter and would not help to 11 relieve the workload of the district court. Systemic efficiencies would be frustrated and the 12 magistrate judge's role reduced to that of a mere dress rehearser if a party were allowed to 13 feint and weave at the initial hearing, and save its knockout punch for the second round . . 14 . Equally important, requiring the district court to hear evidence not previously presented 15 to the magistrate judge might encourage sandbagging. [I]t would be fundamentally unfair 16 to permit a litigant to set its case in motion before the magistrate, wait to see which way 17 the wind was blowing, and—having received an unfavorable recommendation—shift gears 18 before the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 19 2003) (“Finally, it merits re-emphasis that the underlying purpose of the Federal 20 Magistrates Act is to improve the effective administration of justice.”).3 21 As to the objections filed by Petitioner, the Court has conducted a de novo review [22] From Judge: James A. Soto, On the Record (Doc. 49), Motion for a Legal Answer of a 23 Legal Question, From Judge: James A. Soto, On the Record (Doc. 50), and Motion for Correction to the District Two Circuit Court Records of Petition for a Writ of Habeas 24 Corpus Under 28 U.S.C. § 2241 (Doc. 51). In each case, the proper vehicle for raising such issues with the Report and Recommendation is through a Rule 72(b)(2) objection. Indeed, 25 many of the arguments Petitioner makes in these motions are either duplicates of, or elaborations on, the arguments raised in his Objections. Because the Court agrees with the 26 Report and Recommendation and finds Petitioner’s objections meritless, the Court will deny the aforementioned motions. 27 3 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 of the record. See 28 U.S.C. § 636 (b)(1)(C) (“Within fourteen days after being served with 2 [the Report and Recommendation], any party may serve and file written objections to such 3 proposed findings and recommendations as provided by rules of court. A judge of the court 4 shall make a de novo determination of those portions of the report or specified proposed 5 findings or recommendations to which objection is made. A judge of the court may accept, 6 reject, or modify, in whole or in part, the findings or recommendations made by the 7 magistrate judge. The judge may also receive further evidence or recommit the matter to 8 the magistrate judge with instructions.”). 9 In addition to reviewing the Report and Recommendation and any objections and 10 responsive briefing thereto, the Court’s de novo review of the record includes review of the 11 record and authority before United States Magistrate Judge Rateau which led to the Report 12 and Recommendation in this case. 13 Upon de novo review of the record and authority herein, the Court finds Petitioner’s 14 objections to be without merit, rejects those objections, and adopts United States 15 Magistrate Judge Rateau’s Report and Recommendation in its entirety. See, e.g., United 16 States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled by statute to 17 de novo review of the subject. Under Raddatz [ 447 U.S. 667 (1980)] the court may provide 18 this on the record compiled by the magistrate. Rodriguez treats adoption of the magistrate's 19 report as a sign that he has not received his due. Yet we see no reason to infer abdication 20 from adoption. On occasion this court affirms a judgment on the basis of the district court's 21 opinion. Affirming by adoption does not imply that we have neglected our duties; it means, 22 rather, that after independent review we came to the same conclusions as the district judge 23 for the reasons that judge gave, rendering further explanation otiose. When the district 24 judge, after reviewing the record in the light of the objections to the report, reaches the 25 magistrate's conclusions for the magistrate's reasons, it makes sense to adopt the report, 26 sparing everyone another round of paper.”); Bratcher v. Bray-Doyle Independent School 27 Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 (10th Cir. 1993) (“De novo review 28 is statutorily and constitutionally required when written objections to a magistrate's report 1 are timely filed with the district court . . . The district court's duty in this regard is satisfied 2 only by considering the actual testimony [or other relevant evidence in the record], and not 3 by merely reviewing the magistrate's report and recommendations . . . On the other hand, 4 we presume the district court knew of these requirements, so the express references to de 5 novo review in its order must be taken to mean it properly considered the pertinent portions 6 of the record, absent some clear indication otherwise . . . Plaintiff contends . . . the district 7 court's [terse] order indicates the exercise of less than de novo review . . . [However,] 8 brevity does not warrant look[ing] behind a district court's express statement that it engaged 9 in a de novo review of the record.”); Murphy v. International Business Machines Corp., 23 10 F.3d 719, 722 (2nd Cir. 1994) (“We . . . reject Murphy's procedural challenges to the 11 granting of summary judgment . . . Murphy's contention that the district judge did not 12 properly consider her objections to the magistrate judge's report . . . lacks merit. The judge's 13 brief order mentioned that objections had been made and overruled. We do not construe 14 the brevity of the order as an indication that the objections were not given due 15 consideration, especially in light of the correctness of that report and the evident lack of 16 merit in Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) 17 (“When a party timely objects to a magistrate judge's report and recommendation, the 18 district court is required to make a de novo review of the record related to the objections, 19 which requires more than merely reviewing the report and recommendation . . . This court 20 presumes that the district court properly performs its review and will affirm the district 21 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 22 The burden is on the challenger to make a prima facie case that de novo review was not 23 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 24 district court judge did not review the magistrate's report de novo . . . There is no evidence 25 that the district court did not conduct a de novo review. Without any evidence to the 26 contrary . . . we will not assume that the district court did not conduct the proper review.”).4 27 4 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 28 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 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. 14 CONCLUSION 15 Accordingly, IT IS HEREBY ORDERED as follows: 16 (1) United States Magistrate Judge Rateau’s Report and Recommendation (Doc.42) is 17 accepted and adopted in its entirety. 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 (2) Petitioner’s Objections (Doc. 45) are rejected. 2 (3) Petitioner’s §2254 habeas petition (Doc. 1) is denied and this case is dismissed with 3 prejudice. 4 (4) Petitioner’s Motion Requesting Court to Intervene (Doc. 28), Motions Requesting 5 Status (Docs. 30, 32, 35, 36, and 39), Motion LRCiv. 7.1(d)(4) (Docs. 37, 40), and 6 Respondent’s Motion to Strike (Doc. 38) are denied as moot. Petitioner’s Motion to 7 Expand the Record Notification of Defendant's Use of Case that was Denied, 8 Dismissed with Preyudice March 15th, 2019, “Clear Violation” (Doc. 43), Motion 9 for Legal Status of Motion to Expand the Record Notification of Defendant's Use 10 of Case that was Denied, Dismissed with Prejudice March 15th, 2019, “Clear 11 Violation” (Doc. 47), Motion for a Legal Answer of a Legal Question, From Judge: 12 James A. Soto, On the Record (Doc. 49), Motion for a Legal Answer of a Legal 13 Question, From Judge: James A. Soto, On the Record (Doc. 50), and Motion for 14 Correction to the District Two Circuit Court Records of Petition for a Writ of Habeas 15 Corpus Under 28 U.S.C. § 2241 (Doc. 51) are denied. 16 (5) A Certificate of Appealability is denied and shall not issue. 17 (6) The Clerk of the Court shall enter judgment and close the file in this case. 18 Dated this 9th day of March, 2021. [19] eat. Honorable James A. Soto 22 United States District Judge [28] -6-