Hearn v. Commissioner of Alabama Department of Corrections et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/21/2015. (JLC)
2015 Jul-21 PM 01:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
COMMISSIONER OF ALABAMA )
DEPARTMENT OF CORRECTIONS)
Case No. 4:12-cv-01933-VEH-JHE
On June 22, 2015, the magistrate judge’s report and recommendation (doc. 11)
was entered and the parties were allowed therein fourteen (14) days in which to file
objections to the recommendations made by the magistrate judge. No objections have
been filed and the deadline to do so has passed. 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.
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).
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.”).
After careful consideration of the record in this case, and having conducted a de
novo review of the magistrate judge’s report and recommendation, 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
A separate order in conformity with this Memorandum Opinion will be entered
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DONE this 21st day of July, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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