Gallegos v. Smith et al
Filing
15
MEMORANDUM OPINION AND ORDER adopting 13 REPORT AND RECOMMENDATIONS by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALEXANDER GALLEGOS,
Petitioner,
vs.
No. CIV 17-1172 JB\GJF
R.C. SMITH, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed March 5, 2019 (Doc. 13)(“PFRD”). The PFRD notifies the
parties of their ability to file objections within fourteen days and that the failure to file objections
waives appellate review. See PFRD at 33. To date, well after the expiration of the fourteen-day
deadline, neither party has filed objections.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive of a claim or defense or a prisoner petition challenging the conditions of
confinement.”).
Rule 72(b)(2) of the Federal Rules of Civil Procedure governs objections:
“Within 14 days after being served with a copy of the recommended disposition, a party may
serve and file specific written objections to the proposed findings and recommendations.” Fed.
R. Civ. P. 72(b)(2). Finally, when resolving objections to a Magistrate Judge’s proposal, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.
The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate
judge with
instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
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)(C).
“The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.”
United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements,
and Contents, Known As: 2121 East 30th Street, Tulsa Okla., 73 F.3d 1057, 1059 (10th Cir.
1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). As the United States
Court of Appeals for the Tenth Circuit has noted, “the filing of objections advances the interests
that underlie the Magistrate’s Act,[1] including judicial efficiency.” One Parcel, 73 F.3d at 1059
(citing Niehaus v. Kansas Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v.
Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit has held “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further advance the
1
Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-39, in 1968.
-2-
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, ha[s]
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059 (quoting Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991)). “[O]nly an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the policies behind
the Magistrate’s Act.”
One Parcel, 73 F.3d at 1060. In addition to requiring specificity in
objections, the Tenth Circuit has stated that “[i]ssues raised for the first time in objections to
the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th
Cir. 2001)(“In this circuit, theories raised for the first time in objections to the magistrate
judge’s report are deemed waived.”). In an unpublished opinion, the Tenth Circuit stated that
“the district court correctly held that [a petitioner] had waived [an] argument by failing to raise
it before the magistrate.”
Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir.
2007)(unpublished).2
2
Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the
Court in its disposition of this Memorandum Opinion and Order.
-3-
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the
waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060.
The Supreme Court of the United States -- in the course of approving the United States Court of
Appeals for the Sixth Circuit’s use of the waiver rule -- has noted:
It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of review
the district court should perform when no party objects to the magistrate’s report.
See S. Rep. No. 94-625, pp. 9-10 (1976)(hereinafter Senate Report); H.R. Rep. No.
94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162 (hereinafter
House Report). There is nothing in those Reports, however, that demonstrates
an intent to require the district court to give any more consideration to the
magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975)(emphasis added)(hereinafter Senate Hearings). The Committee
also heard Judge [Charles] Metzner of the Southern District of New York, the
chairman of a Judicial Conference Committee on the administration of the
magistrate system, testify that he personally followed that practice. See id., at 11
(“If any objections come in, . . . I review [the record] and decide it. If no
objections come in, I merely sign the magistrate’s order.”). The Judicial
Conference of the United States, which supported the de novo standard of review
eventually incorporated in § 636(b)(1)(C), opined that in most instances no party
would object to the magistrate’s recommendation, and the litigation would
terminate with the judge’s adoption of the magistrate’s report. See Senate
Hearings, at 35, 37. Congress apparently assumed, therefore, that any party who
was dissatisfied for any reason with the magistrate’s report would file objections,
and those objections would trigger district court review. There is no indication
that Congress, in enacting § 636(b)(1)(C)), intended to require a district judge to
review a magistrate’s report to which no objections are filed. It did not preclude
treating the failure to object as a procedural default, waiving the right to further
consideration of any sort. We thus find nothing in the statute or the legislative
history that convinces us that Congress intended to forbid a rule such as the one
adopted by the Sixth Circuit.
-4-
Thomas v. Arn, 474 U.S. at 150-52 (footnotes omitted).
The Tenth Circuit has also noted, “however, that ‘[t]he waiver rule as a procedural bar
need not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060
(quoting Moore v. United States, 950 F.2d at 659 (“We join those circuits that have declined to
apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s order does not
apprise the pro se litigant of the consequences of a failure to object to findings and
recommendations.” (citations omitted)). Cf. Thomas v. Arn, 474 U.S. at 154 (“Any party that
desires plenary consideration by the Article III judge of any issue need only ask. [A failure to
object] 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.”). In One Parcel, the Tenth Circuit noted that the
district judge had decided sua sponte to conduct a de novo review despite the lack of specificity
in the objections, but the Tenth Circuit held that it would deem the issues waived on appeal
because it would advance the interests underlying the waiver rule. See 73 F.3d at 1060-61 (citing
cases from other Courts of Appeals where district courts elected to address merits despite
potential application of waiver rule, but Courts of Appeals opted to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s proposed
findings and recommendation, “on . . . dispositive motions, the statute calls for a de novo
determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980). The
Tenth Circuit has stated that a de novo determination, pursuant to 28 U.S.C. § 636(b), “requires
the district court to consider relevant evidence of record and not merely review the magistrate
judge’s recommendation.” Griego v. Padilla (In re Griego), 64 F.3d 580, 583-84 (10th Cir.
1995).
The Supreme Court has noted that, although a district court must make a de novo
determination of the objections to recommendations under 28 U . S . C . § 636(b)(1), the district
-5-
court is not precluded from relying on the Magistrate Judge’s proposed findings and
recommendations. See United States v. Raddatz, 447 U.S. at 676 (“[I]n providing for a ‘de novo
determination’ rather than de novo hearing, Congress intended to permit whatever reliance a
district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s
proposed findings and recommendations.” (quoting 28 U . S . C . § 636(b)(1)); Bratcher v. BrayDoyle Indep. Sch. Dist. No. 42 of Stephens Cty., 8 F.3d 722, 724-25 (10th Cir. 1993)(holding that
the district court’s adoption of the Magistrate Judge’s “particular reasonable- hour estimates” is
consistent with a de novo determination, because “the district court ‘may accept, reject, or
modify,
in
whole
or
in
part,
the
findings
or
recommendations
made
by
the
magistrate,’ . . . [as] ‘Congress intended to permit whatever reliance a district judge, in
the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings
and recommendations.’” (quoting 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. at
676 (emphasis omitted)).
Where no party objects to the Magistrate Judge’s proposed findings and recommended
disposition, the Court has, as a matter of course in the past and in the interests of justice,
reviewed the Magistrate Judge’s recommendations. In Workheiser v. City of Clovis, No. CIV
12-0485 JB/GBW, 2012 WL 6846401 (D.N.M. Dec. 28, 2012)(Browning, J.), where the plaintiff
failed to respond to the Magistrate Judge’s proposed findings and recommended disposition,
although the Court determined that the plaintiff “has waived his opportunity for the Court to
conduct review of the factual and legal findings in the [proposed findings and recommended
disposition],” the Court nevertheless conducted such a review. 2012 WL 6846401, at *3. The
Court generally does not, however, review the Magistrate Judge’s proposed findings and
recommended disposition de novo, and determine independently necessarily what it would do if
-6-
the issues had come before the Court first, but rather adopts the proposed findings and
recommended disposition where “[t]he Court cannot say that the Magistrate Judge’s
recommendation . . . is clearly erroneous, arbitrary, [obviously][3] contrary to law, or an abuse of
discretion.” Workheiser v. City of Clovis, 2012 WL 6846401, at *3. This review, which is
deferential to the Magistrate Judge’s work when there is no objection, nonetheless provides some
review in the interest of justice, and seems more consistent with the intent of the waiver rule than
no review at all or a full-fledged review. Accordingly, the Court considers this standard of
review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate.”). The Court is reluctant to have
3
The Court previously used as the standard for review when a party does not object to the
Magistrate Judge’s proposed findings and recommended disposition whether the recommendation
was “clearly erroneous, arbitrary, contrary to law, or an abuse of discretion,” thus omitting
“obviously” in front of contrary to law. Solomon v. Holder, No. CIV 12-1039 JB/LAM, 2013 WL
499300, at *4 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the recommendation to which there
was no objection, stating: “The Court determines that the PFRD is not clearly erroneous, arbitrary,
contrary to law, or an abuse of discretion, and accordingly adopts the recommendations therein.”);
O’Neill v. Jaramillo, No. CIV 11-0858 JB/GBW, 2013 WL 499521 (D.N.M. Jan. 31,
2013)(Browning, J.)(“Having reviewed the PRFD under that standard, the Court cannot say that
the Magistrate Judge’s recommendation is clearly erroneous, arbitrary, contrary to law, or an abuse
of discretion. The Court thus adopts [Magistrate] Judge Wormuth’s PFRD.” (citing Workheiser
v. City of Clovis, 2012 WL 6846401, at *3)); Galloway v. JP Morgan Chase & Co., No. CIV 120625 JB/RHS, 2013 WL 503744 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the Magistrate
Judge’s recommendations upon determining that they were not “clearly contrary to law, or an
abuse of discretion.”). The Court does not believe that “contrary to law” accurately reflects the
deferential standard of review that the Court intends to use when there is no objection. Finding
that a Magistrate Judge’s recommendation is contrary to law would require the Court to analyze
the Magistrate Judge’s application of law to the facts or the Magistrate Judge’s delineation of the
facts -- in other words performing a de novo review, which is required when a party objects to the
recommendations only. The Court believes adding “obviously” better reflects that the Court is not
performing a de novo review of the Magistrate Judges’ recommendations. Going forward,
therefore, the Court will, as it has done for some time now, review Magistrate Judges’
recommendations to which there are no objections for whether the recommendations are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.
-7-
no review at all if its name is going to go at the bottom of the order adopting the Magistrate
Judge’s proposed findings and recommendations.
ANALYSIS
The Court has carefully reviewed the PFRD and the Petitioner’s Petition Under 28 U.S.C.
2254 for a Writ of Habeas Corpus, filed November 28, 2017 (Doc. 1). The Court did not review
the PFRD de novo, because the parties have not objected to it, but rather reviewed the Honorable
Gregory Fouratt’s, United States Magistrate Judge for the District of New Mexico, PFRD to
determine if it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.
The Court determines that the PFRD is not clearly erroneous, arbitrary, obviously contrary to law,
or an abuse of discretion. Accordingly, the Court will adopt the PFRD.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed March 5, 2019 (Doc. 13), is adopted; and (ii) the Petitioner’s Petition Under 28
U.S.C. 2254 for a Writ of Habeas Corpus, filed November 28, 2017 (Doc. 1), is dismissed with
prejudice.
________________________________
UNITED STATES DISTRICT JUDGE
Parties and Counsel:
Alexander Gallegos
Hobbs, New Mexico
Petitioner pro se
Jane Bernstein
New Mexico Attorney General
Albuquerque, New Mexico
Attorney for the Respondent
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?