Mikols v. Heisner

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Mitchell Anthony Mikols, No. CV-23-00187-PHX-JAT 10 Petitioner, ORDER 11 v. 12 RA Heisner, 13 Respondent. — 14 — 15 Pending before this Court is Petitioner’s Petition brought pursuant to 28 U.S.C. § 16 2241. The Magistrate Judge to whom this case was assigned issued a Report and 17 Recommendation (“R&R”) on November 1, 2023, recommending that the Petition be 18 denied. (Doc. 12). 19 On November 30, 2023, Petitioner filed a notice of change of address. On 20 December 1, 2023, the Clerk’s office re-mailed the R&R to Petitioner at the new address. 21 More than 14 days have passed since the re-mailing and no objections to the R&R have 22 been filed. 23 This Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 25 the district judge must review the magistrate judge’s findings and recommendations de 26 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 27 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 28 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that || de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 4|| [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 5 || not required to conduct “any review at all... of any issue that is not the subject of an || objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 7\| § 636(b)(1) (‘the court shall make a de novo determination of those portions of the [report 8 || and recommendation] to which objection is made.”).! 9 No objections having been filed, 10 IT IS ORDERED that the Report and Recommendation (Doc. 12) is accepted and 11 || adopted. The Petition is denied and dismissed with prejudice and the Clerk of the Court shall enter judgment accordingly. 13 IT IS FURTHER ORDERED that no certificate of appealability is required.” 14 Dated this 3rd day of January, 2024. — 15 — — 16 — — 17 — James A. Teilborg 18 Senior United States District Judge — 19 — — 20 — — 21 — — 22 — — 23 — ' The Court notes that the Notes of the Advisory Committee on Rules ap ear to suggest a clear error standard of review under Federal Rule of Civil Procedure 7 tb). See Notes of Advisory Committee on Rules—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 face of the record in order to accept the 26 recommendation.”). The court in Campbell, however, appears to delineate a standard of review Specific to magistrate judge findings in the motion to Suppress context. See 27 Campbell, 501 F.2d at 206—207. Because this case is not within this limited context, this 28 Court follows the Ninth Circuit’s en banc decision in Reyna-Tapia on the standard of review. ? See Porter v. Adams, 244 F.3d 1006, 1007 (9th. Cir. 2001). _2-