Halstead v. Miller

Filing 11

ORDER Accepting 10 Report and Recommendation granting 8 Motion to Dismiss for Failure to State a Claim. Halstead's petition for a writ of habeas corpus is dismissed. No certificate of appealability will issue in this case. Signed by Judge Mark W Bennett on 12/23/14. (copy w/nef mailed to petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

DAVID J. HALSTEAD,
Petitioner,

No. C14-3023-MWB

vs.

ORDER REGARDING
MAGISTRATE’S REPORT AND
RECOMMENDATION
CONCERNING PETITION FOR
WRIT OF HABEAS CORPUS

JAMES MCKINNEY,
Respondent.

____________________
I. INTRODUCTION AND BACKGROUND
Petitioner David J. Halstead’s Petition Under 28 U.S.C. § 2254 For Writ Of Habeas
Corpus By A Person In State Custody is before me pursuant to a Report and
Recommendation of United States Magistrate Judge Leonard T. Strand recommending that
respondent James McKinney’s Motion to Dismiss be granted and the petition be dismissed
because all of Halstead’s claims are either procedurally defaulted or moot. Neither party
has filed objections to Judge Strand’s Report and Recommendation. I now consider
whether to accept, reject, or modify Judge Strand’s Report and Recommendation.
II. ANALYSIS
I review the magistrate judge’s report and recommendation pursuant to the statutory
standards found in 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 or
recommendations to which objection is made. A judge of the

court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (2006); see Fed. R. Civ. P. 72(b) (stating identical requirements);
N.D. IA. L.R. 7.1 (allowing the referral of dispositive matters to a magistrate judge but
not articulating any standards to review the magistrate judge’s report and
recommendation). While examining these statutory standards, the United States Supreme
Court explained:
Any party that desires plenary consideration by the Article III
judge of any issue need only ask. Moreover, while the statute
does not require the judge to review an issue de novo if no
objections are filed, it does not preclude further review by the
district judge, sua sponte or at the request of a party, under a
de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo any
issue in a magistrate judge’s report and recommendation at any time. Id. If a party files
an objection to the magistrate judge’s report and recommendation, however, the district
court must “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”

28 U.S.C.

§ 636(b)(1). In the absence of an objection, the district court is not required “to give any
more consideration to the magistrate’s report than the court considers appropriate.”
Thomas, 474 U.S. at 150.
In this case, no objections have been filed. As a result, I have reviewed Judge
Strand’s Report and Recommendation under a clearly erroneous standard of review. See
Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting when no objections are
filed and the time for filing objections has expired, “[the district court judge] would only

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have to review the findings of the magistrate judge for clear error”); Taylor v. Farrier, 910
F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee’s note to Fed. R. Civ. P.
72(b) indicates “when no timely objection is filed the court need only satisfy itself that
there is no clear error on the face of the record”). After conducting my review, I am not
“‘left with [a] definite and firm conviction that a mistake has been committed,’” and find
no reason to reject or modify the magistrate judge’s recommendation. Anderson v. City
of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).

Therefore, I accept Judge Strand’s Report and

Recommendation and order that Halstead’s petition for a writ of habeas corpus is
dismissed.
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section 2554
Cases in the United States District Court, I must determine whether to issue a certificate
of appealability. In § 2254 cases, a certificate of appealability may issue only if the
petitioner has made a substantial showing of the denial of a constitutional right. See 28
U.S.C. § 2253(c)(1)-(2). I find no issue on which Halstead has made a substantial showing
of a denial of a constitutional right and no certificate of appealability will issue in this case.
IT IS SO ORDERED.
DATED this 23rd day of December, 2014.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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