Martinez v. Sims et al
Filing
17
ORDER ADOPTING REPORT AND RECOMMENDATIONS 16 by District Judge James O. Browning. (vv)
Case 2:18-cv-00559-JB-GJF Document 17 Filed 08/31/20 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAYMOND M. MARTINEZ,
Petitioner,
vs.
No. CIV 18-0559 JB\GJF
DWIGHT SIMS, Warden, and
HECTOR H. BALDERAS, Attorney
General for the State of New Mexico,
Respondents.
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 July 15, 2020 (Doc. 16)(“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 17. To date, well after the expiration of the fourteen-day deadline,
neither party has filed objections. Because the PFRD is not clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion, the Court adopts the PFRD.
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
Case 2:18-cv-00559-JB-GJF Document 17 Filed 08/31/20 Page 2 of 8
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 Prop., With Buildings, Appurtenances, Improvements, and Contents, Known
As: 2121 E. 30th St., 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. Kan. 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 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
1
Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-39, in 1968.
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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
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
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.
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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. 94625, 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.” 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 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.
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)).
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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 One
Parcel, 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 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. Bray-Doyle 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
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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.’” (first quoting
28 U.S.C. § 636(b)(1) (emphasis omitted), and then quoting United States v. Raddatz, 447 U.S.
at 676)).
Where no party objects to the Magistrate Judge’s PFRD, 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 PFRD, 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 PFRD, the Court nevertheless conducted such a review. See
2012 WL 6846401, at *3. The Court generally does not, however, review the Magistrate Judge’s
PFRD de novo, and determine independently necessarily what it would do if the issues had come
before the Court first, but rather adopts the PFRD where “[t]he Court cannot say that the Magistrate
Judge’s recommendation . . . is clearly erroneous, arbitrary, [obviously 3] contrary to law, or an abuse
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, at *7 (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 Judge Wormuth’s PFRD.” (citing Workheiser v. City of Clovis,
2012 WL 6846401, at *3)); Galloway v. JP Morgan Chase & Co., No. CIV 12-0625 JB/RHS, 2013
WL 503744, at *4 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the Magistrate Judge’s
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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 no review at all if its
name is going to go at the bottom of the order adopting the Magistrate Judge’s PFRD.
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 June 15, 2018 (Doc. 1). The Court did not review the
PFRD de novo, because the parties have not objected to it, but rather reviewed the PFRD of the
Honorable Gregory J. Fouratt, United States Magistrate Judge for the United States District Court for
the District of New Mexico, 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.
recommendations upon determining that they were not “clearly contrary to law, or an abuse of
discretion”). The Court concludes that “contrary to law” does not reflect accurately the deferential
standard of review that the Court intends to use when there is no objection. Concluding 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 concludes that 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 the 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.
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IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed July 15, 2020 (Doc. 16), is adopted; (ii) the Petitioner’s Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody, filed June 15, 2018 (Doc. 1), is
denied; and (iii) pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings for the United
States District Courts, a certificate of appealability is denied.
________________________________
UNITED STATES DISTRICT JUDGE
Parties:
Raymond M. Martinez
Los Lunas, New Mexico
Petitioner pro se
Hector Balderas
New Mexico Attorney General
Jane Bernstein
Assistant New Mexico Attorney General
New Mexico Attorney General’s Office
Albuquerque, New Mexico
Attorneys for the Respondents
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