Esteban v. Apker

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241 (Doc. 1) is dismissed. The Clerk of the Court shall enter Judgment accordingly. Because Petitioner did not file any objection to the R&R, any appeal will not be taken in good faith. 28 U.S.C. 1915(a)(3) and FRAP 24(a). Signed by Judge David C Bury on 07/27/12. (LMF)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
Jerry Estaban,

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Petitioner,
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v.
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Craig Apker, Warden,
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Respondent,
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_______________________________________)
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CV 11-632 TUC DCB(DTF)
ORDER

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This matter was referred to Magistrate Judge D. Thomas Ferraro, on October 17, 2011.

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Pursuant to Rules of Practice for the United States District Court, District of Arizona (Local

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Rules), Rule (Civil) 72.1(a), he issued a Report and Recommendation (R&R) on June 7, 2012.

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(Doc. 8: R&R). He recommends that this Court dismiss the Petition for Writ of Habeas Corpus,

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filed pursuant to 28 U.S.C. § 2241.

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STANDARD OF REVIEW

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The duties of the district court, when reviewing a Report and Recommendation (R&R)

21 of a Magistrate Judge, are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28
22 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the
23 findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. §
24 636(b)(1). When the parties object to a R&R, “‘[a] judge of the [district] court shall make a de
25 novo determination of those portions of the [R&R] to which objection is made.’” Thomas v. Arn,
26 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no objections are filed, the
27 district court does not need to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000
28 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en

banc).

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The parties were sent copies of the R&R and instructed they had 14 days to file written

2 objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting
3 to the recommended disposition has fourteen (14) days to file specific, written objections). To
4 date, no objections have been filed.
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REPORT AND RECOMMENDATION
The Honorable D. Thomas Ferraro, United States Magistrate Judge, considered whether

7 Petitioner’s due process rights were violated by a disciplinary hearing officer’s finding he
8 committed an assault on another prisoner, Santiago. Petitioner argued that there was insufficient
9 evidence to support the finding. In order to comport with due process, a disciplinary decision
10 must have some support, but only by ‘some evidence’ in the record.” (R&R at 3 (quoting
11 Superintendent Mass. Corr. Inst. v. Hill, 472 U.S. 445, 445-56 (1985)). There was an eye12 witness third-party account, the victim, Santiago, and the Petitioner both testified, and a
13 photograph was introduced that showed Santiago was injured. At best the evidence suggests the
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strike may not have been directed at a particular individual, but there was evidence presented at

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the hearing to support the conclusion that it was not an accident because Petitioner “was having

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family issues and swung out his arm,” hitting Santiago. (R&R at 3-5.)
Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those
portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1) ("A judge of the court
shall make a de novo determination of those portions of the report or specified proposed findings
and recommendations to which objection is made.") To the extent that no objection has been
made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th
Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also,
Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court,
501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy

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itself that there is no clear error on the face of the record in order to accept the recommendation).
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While there are no objections and review has, therefore, been waived, the Court
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nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law.
Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449,

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1 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v.
2 Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily
3 waive question of law, but is a factor in considering the propriety of finding waiver)). The Court
4 finds the R&R to be thorough and well-reasoned, without any clear error in law or fact. United
5 States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989). The Court accepts and adopts the
6 R&R as the opinion of the Court, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated in
7 the R&R, the Court dismisses the Petition for Writ of Habeas Corpus.
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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. # 8) is adopted as the

10 opinion of the Court.
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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus, pursuant to

12 28 U.S.C. § 2241 (Doc. 1) is DISMISSED.
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IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment
accordingly.
IT IS FURTHER ORDERED that because Petitioner did not file any objection to the
R&R, any appeal will not be taken in good faith. 28 U.S.C. 1915(a)(3) and FRAP 24(a).
DATED this 27th day of July, 2012.

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