Cordova v. USA

Filing 23

MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by District Judge James O. Browning, STRIKING 14 Amended MOTION to Vacate under 28 U.S.C. 2255; GRANTING 16 Motion to Strike 14 MOTION to Vacate Under 28 U.S.C. § 2255; ADOPTING re 22 Proposed Findings and Recommended Disposition in Favor of Granting the Motion to Strike. (arp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTHONY CORDOVA,
Petitioner,
vs.

No. CIV 22-0479 JB/JHR
No. CR 16-1613 JB

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on: (i) the Amended Motion to Vacate the
Judgement [sic] Conviction and Sentance [sic], filed July 17, 2023 (Doc. 14)(“Motion to Vacate”);
(ii) the United States’ Motion to Strike Defendant’s Amended Motion to Vacate Under 28 U.S.C.
§ 2255, filed November 14, 2023 (Doc. 16)(“Motion to Strike”); and (iii) the Proposed Findings
and Recommended Disposition in Favor of Granting the Motion to Strike, filed July 10, 2024
(Doc. 22)(“PFRD”). In the PFRD, the Honorable Jerry H. Ritter, United States Magistrate Judge
for the United States District Court for the District of New Mexico, recommends that the Court
grant the Motion and Strike. See PFRD at 6-7. Objections were due within 14 days of service of
the PFRD, plus three days for parties receiving service by mail. See PFRD at 7. Timely objections
were thus due, at latest, on Monday, July 29, 2024. As of the date of entry of this Order, no
objections have been filed, and, upon review of the law and the record, the Court concurs with
Magistrate Judge Ritter’s PFRD, grants the Motion to Strike, and strikes the Motion to Vacate.
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) 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
a ttention 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

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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
r ecommendation 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 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.”

1

Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir.

Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-39, in 1968.

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2007)(unpublished).2
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 656, 659 (10th Cir. 1991)(“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 (noting that, while
“[a]ny 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

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 United States Court of Appeals for 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 finds 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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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 PFRD “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.” 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 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 Cnty., Okla., 8 F.3d 722,
724-25 (10th Cir. 1993)(“Bratcher”)(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’” (quoting 28 U.S.C. § 636(b)(1))(emphasis in
Bratcher but not in 28 U.S.C. § 636(b)(1))). “‘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.’” Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir.
1991)(quoting United States v. Raddatz, 447 U.S. at 676).

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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. December 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
[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 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

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, CIV 12-1039 JB/LAM, 2013 WL
499300, at *4 (D.N.M. January 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, CIV 11-0858 JB/GBW, 2013 WL 499521 (D.N.M. January 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., CIV 12-0625 JB/RHS,
2013 WL 503744 (D.N.M. January 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’
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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, however, 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 proposed findings and recommendations.
ANALYSIS
The Court has carefully reviewed the PFRD. The Court did not review the PFRD de
novo, because the parties have not objected to it, but rather reviewed Magistrate Judge Ritter’s
PFRD to determine if they it is clearly erroneous, arbitrary, obviously contrary to law, or an
abuse of discretion. The Court determines that it is not. Accordingly, the Court will adopt the
PFRD.
IT IS ORDERED that: (i) Amended Motion to Vacate the Judgement [sic] Conviction and
Sentance [sic], filed July 17, 2023 (Doc. 14), is stricken; (ii) the United States’ Motion to Strike
Defendant’s Amended Motion to Vacate Under 28 U.S.C. § 2255, filed November 14, 2023
(Doc. 16), is granted; and (iii) the Proposed Findings and Recommended Disposition in Favor of
Granting the Motion to Strike, filed July 10, 2024 (Doc. 22), is adopted.

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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Counsel and Parties:
Anthony Cordova
Adelanto, California
Petitioner pro se
Alexander M.M. Uballez
United States Attorney
Maria Y. Armijo
Randy M. Castellano
Ryan Ellison
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Respondent

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