Arnaud v. Valley

          ORDER ADOPTING REPORT & RECOMMENDATION WITHOUT OBJECTION; DENYING PET.'S REQUEST FOR EVIDENTIARY HEARING; DENYING THE HABEAS CORPUS PETITION; DIRECTING ENTRY OF SEPARATE FINAL JUDGMENT; TERMINATING AND CLOSING THE CASE (JS-6)

          Valerie Baker Fairbank Senior United States District Judge

         This is an action for a Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. section 2254. Pursuant to his authority under Fed.R.Civ.P. 72(b)(1), title 28 U.S.C. section 636(b)(1)(B), and CD. Cal. Local Civil Rule 72-3.3, the United States Magistrate Judge issued a Report and Recommendation ("R&R") on March 22, 2016. See Case Management / Electronic Case Filing System Document ("Doc") Doc 42.

         Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the habeas corpus petition (Doc 1), the respondent warden's answer and accompanying memorandum (Doc 35), the relevant decision(s) of the California state courts, the other state-court "lodged documents" submitted by the respondent in paper form (listed in the Notice of Lodging at Doc 36), petitioner's traverse (Doc 38), the Magistrate Judge's R&R (Doc 42), and the applicable law.

         Petitioner has not filed written objections to the R&R within the time allotted by our Local Civil Rule 72-3.4^[1], nor has he sought an extension of the objection deadline. Accordingly, the Court proceeds to the issues without waiting further.

         By its terms, Federal Rule of Civil Procedure 72(b)(3) requires a District Judge to conduct de novo review only of those portions of an R&R to which a party has filed timely specific objection. See, e.g., Rael v. Foulk, No. LA CV 14-02987 Doc. 47, 2015 WL 4111295, *1 (CD. Cal. July 7, 2015) (Fairbank, J.) ("As required by Fed. R Civ. P. 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which petitioner has specifically objected . . . ."), COA denied, No. LA CV 14-02987 Doc. 53, Appeal No. 15-56205 (9th Cir. Feb. 18, 2016).

         Conversely, the Ninth Circuit has held that absent a timely objection purporting to identify specific defects in the R&R, the District Judge has no obligation to review the R&R at all. See Beard v. Nooth, 2013 WL 3934188, *1 (D. Or. July 30, 2013) ("For those portions of a magistrate's findings and recommendations to which neither party has objected, the [Federal Magistrates] Act does not prescribe any standard of review.") (citing Thomas v. Am, 474 U.S. 140, 152, 106 S.Ct. 466, 473 (1985) ("There is no indication that Congress, in enacting [the Federal Magistrates Act], intended to require a district judge to review amagistrate's report.[.]") and United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^thCir. 2003) (en banc) (district judge must review a magistrate's findings and recommendations de novo if objections are made, "but not otherwise")); see, e.g., Herring v. Maricopa County Sheriff's Office, 2016 WL 2754851, *1 (D. Ariz. May 12, 2016) (Campbell, J.) ("No objection has been filed, which relieves the Court of its obligation to review the R&R.") (citing, inter alia, Reyna-Tapia, 328 F.3d at 1121, and Thomas, 474 U.S. at 149); Hussak v. Ryan, 2016 WL 2606993, *1 (D. Ariz. May 6, 2016) (Rayes, J.) (same).^[2]

         "Nonetheless, the Magistrates Act does not preclude a district judge from reviewing an R&R to make sure that it recommends a legally permissible and appropriate outcome (based on sound reasoning and valid precedent) if she chooses to do so." Juarez v. Katavich, 2016 WL 2908238, *2 (CD. Cal. May 17, 2016) (Fairbank, J.) (citing Beard, 2013 WL 3934188 at *1 (although in the absence of objections no review is required, the Magistrates Act '"does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard") (quoting Thomas, 474 U.S. at 154)). '"Indeed, the Advisory Committee Notes to Fed. R Civ. P. 72(b) recommend that [w]hen no timely objection is filed, the Court review the magistrate's recommendations for clear error on the face of the record.'" Juarez, 2016 WL 2908238 at *2 (quoting Beard, 2013 WL 3934188 at *1 (internal quotation marks omitted)).

         Out of an abundance of caution, then, the Court has reviewed the R&R. On either clear-error or de novo review, the Court finds no defect of law, fact, or logic in the R&R. Therefore the Court will adopt the R&R and implement its recommendations.

         ORDER

         The Report and Recommendation is ADOPTED without objection.

         Petitioner's request for an evidentiary hearing is DENIED.

         The petition for a writ of habeas corpus is DENIED.

         The Court will rule on a certificate of appealability by separate order.

         Final judgment will be issued consistent with this Order. "As required by Fed.R.Civ.P. 58(a), the Court will enter judgment by separate document." Toy v. Soto, 2015 WL 2168744, *1 (CD. Cal. May 5, 2015) (citing Jayne v. Sherman,706 F.3d 994, 1009 (9^th Cir. 2013)) ...