Larry v. Giles et al

Filing 26

MEMORANDUM OPINION ADOPTING and ACCEPTING the Magistrate Judge's 23 Report and Recommendation. Signed by Judge Virginia Emerson Hopkins on 6/22/2015. (JLC)

FILED
2015 Jun-22 PM 04:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JAMES KEITH LARRY,
Petitioner
v.
SANDRA GILES and
THE ATTORNEY GENERAL OF
THE STATE OF ALABAMA,
Respondents

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Case No. 3:12-cv-04201-VEH-JEO

MEMORANDUM OPINION
On April 28, 2015, the magistrate judge’s report and recommendation (doc. 23)
was entered and the parties were allowed therein fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. On May 13, 2015,
Petitioner filed objections (doc. 25) to the magistrate judge’s report and
recommendation. The matter is thus before the undersigned for decision.
DISTRICT COURT REVIEW OF REPORT AND RECOMMENDATION
After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th

Cir.1982)).1 The district judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” Id.. This requires that the district judge “give fresh consideration to those
issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd.
of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted).
In contrast, those portions of the R & R to which no objection is made need
only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed. App’x. 781, 784
(11th Cir. 2006).2

1

The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by a Unit B panel of the former
Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982); see also United States
v. Schultz, 565 F.3d 1353, 1361 n. 4 (11th Cir.2009) (discussing the continuing validity of Nettles).
2

Macort dealt only with the standard of review to be applied to a magistrate's factual
findings, but the Supreme Court has held that there is no reason for the district court to apply a
different standard to a magistrate's legal conclusions. Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct.
466, 88 L. Ed. 2d 435 (1985). Thus, district courts in this circuit have routinely applied a clear-error
standard to both. See Tauber v. Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga. 2006)
(collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes
between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a magistrate's
findings of fact are adopted by the district court without objection, they are reviewed on appeal under
a plain-error standard, but questions of law remain subject to de novo review).
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“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (citation omitted).
It is incumbent upon the parties to timely raise any objections that they may have
regarding a magistrate judge’s findings contained in a report and recommendation,
as the failure to do so subsequently waives or abandons the issue, even if such matter
was presented at the magistrate judge level. See, e.g., U.S. v. Pilati, 627 F.3d 1360 at
1365 (11th Cir. 2010) (“While Pilati raised the issue of not being convicted of a
qualifying offense before the magistrate judge, he did not raise this issue in his appeal
to the district court. Thus, this argument has been waived or abandoned by his failure
to raise it on appeal to the district court.”). However, the district judge has discretion
to consider or to decline to consider arguments that were not raised before the
magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also
Williams v. McNeil, 557 F. 3d 1287, 1292 (11th Cir. 2009).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n. 8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
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rule “would effectively nullify the magistrate judge's consideration of the matter and
would not help to relieve the workload of the district court.” Id. (quoting United
States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
PETITIONER’S OBJECTIONS
Although the Petitioner filed lengthy objections, the only objection that is not
merely a repetition of matters considered and correctly decided by the magistrate
judge is Petitioner’s argument that the facility in which he was incarcerated “at the
time [he] was to prepare his petition for writ of certiorari to the Alabama Supreme
Court ... suffered a direct hit from a tornado” (Doc. 25 at p.3) and that this fact is
“cause” excusing his procedural default of failing to timely seek certiorari review by
the Alabama Supreme Court.
Assuming without deciding that Petitioner is correct that he has shown “cause”,
the magistrate judge nonetheless correctly found procedural default, as Petitioner has
wholly failed to show “prejudice.” That is, Petitioner has failed to “show that there
is at least a reasonable probability that the result of the proceeding would have been
different”3 if he had timely filed his petition for writ of certiorari.
CONCLUSION

3

Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2013) (citation omitted).
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After careful consideration of the record in this case, the magistrate judge’s
report and recommendation, and the petitioner’s objections thereto, the court hereby
ADOPTS the report of the magistrate judge. The court further ACCEPTS the
recommendations of the magistrate judge that the petition for writ of habeas corpus
be denied.
A separate order in conformity with this Memorandum Opinion will be entered
contemporaneously herewith.
DONE this 22nd day of June, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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