Hernandez v. Lewis

Filing 77

ORDER DENYING 76 Motion for Reconsideration, signed by District Judge Dale A. Drozd on 8/25/17. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JESUS CIANEZ HERNANDEZ, 12 No. 1:12-cv-01661-DAD-MJS Petitioner, 13 v. 14 GREG LEWIS, 15 ORDER DENYING REQUEST FOR RECONSIDERATION (Doc. No. 76) Respondent. 16 17 On July 11, 2017, the undersigned issued an order declining to adopt the findings and 18 recommendations of the assigned magistrate judge recommending that the petition be granted and 19 referring the matter for further consideration of the standard of review and application of 20 deference, if any, to the factual findings made by the state court. (Doc. No. 74.) On July 17, 21 2017, petitioner filed both a request for reconsideration of the undersigned’s order and an 22 amended request for reconsideration. (Doc. Nos. 75, 76.) For the reasons set forth below, the 23 court will deny the request for reconsideration. 24 Petitioner maintains that because no objections were filed to the findings and 25 recommendations, the court erred by subjecting the findings and recommendations to de novo 26 review. (Doc. No. 76 at 2.) According to petitioner, district judges are not required to perform de 27 novo review of any portions of the findings and recommendations that are not objected to. (Id. at 28 2–4 ) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). Whether or not 1 1 a district judge is required to review findings and recommendations de novo standard, it is clear 2 that a district judge may conduct such a review in issuing an order addressing findings and 3 recommendations. While the relevant statute requires the undersigned to conduct a de novo 4 review of any portion of a recommendation from a magistrate judge that is objected to, it also 5 specifically states the “court may accept, reject, or modify, in whole or in part, the findings or 6 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). Accordingly, 7 reconsideration is not compelled based on this argument. 8 Finally, petitioner objects because he believes that the undersigned should not have 9 “reconsider[ed] the factual findings” of the magistrate judge. (Doc. No. 76 at 6.) However, the 10 court did not reconsider the magistrate judge’s factual findings. Rather, the court sought further 11 legal analysis and explanation from the assigned magistrate judge as to the applicable standard of 12 review being employed and the deference, if any, being accorded to state court factual findings 13 under §§ 2254(d)(2) and (e)(1). (Doc. No. 74 at 4–6.) 14 15 16 For these reasons, petitioner’s request for reconsideration (Doc. No. 76) is denied. IT IS SO ORDERED. Dated: August 25, 2017 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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