Hernandez v. Lewis

Filing 77

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

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