Parmentier v. Heisner

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Kevin Robert Parmentier, No. CV-22-01535-PHX-JAT 10 Petitioner, ORDER 11 v. 12 R. Heisner, 13 Respondent. [14] 15 Currently pending is Petitioner’s Petition for Writ of Habeas Corpus filed under 28 16 U.S.C. § 2241 . This case was referred to a Magistrate Judge. (Doc. 6). The Magistrate 17 Judge has issued a Report and Recommendation (“R&R”) recommending that the Petition 18 be denied. (Doc. 24). 19 After the R&R was issued, Petitioner filed an interlocutory appeal. That appeal was 20 dismissed because the R&R was not an appealable order. (Doc. 28). The mandate has 21 issued. (Id.). 22 The R&R recommends that this Court deny relief. Specifically, the R&R finds that 23 Petitioner is not “entitled to credit towards his federal sentence for the days spent in federal 24 custody pursuant to the Writ of Habeas Corpus Ad Prosequendum.” (Doc. 24 at 3). Neither 25 party has objected to the R&R. The time for filing objections has run. 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 28 the district judge must review the magistrate judge’s findings and recommendations de 1 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 2 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 3 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 4 de novo review of factual and legal issues is required if objections are made, ‘but not 5 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 6 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 7 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 8 not required to conduct “any review at all . . . of any issue that is not the subject of an 9 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 10 § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 11 and recommendation] to which objection is made.”).1 12 Neither party having objected, 13 IT IS ORDERED that the Report and Recommendation (Doc. 24) is accepted 14 except as modified below. The Petition for Writ of Habeas Corpus is denied and dismissed 15 with prejudice and the Clerk of the Court shall enter judgment accordingly. 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / [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). Note of Advisory Committee on Rules—1983 citing 25 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 face of the 26 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 the motion to 27 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 Reyna-Tapia on 28 the standard of review. 1 IT IS FURTHER ORDERED that the portion of the Report and Recommendation regarding a certificate of appealability is modified to reflect that a certificate of 3|| appealability is not required to appeal a petition brought pursuant to 28 U.S.C § 2241.7 4 Dated this 30th day of October, 2023. [5] 6 ' James A. CO 8 Senior United States District Judge [28] ? See Forde v. U.S. Parole Comm’n, 114 F.3d 878, 879 (9th Cir. 1997). -3-