United States District Court, C.D. California, Western Division
KENNETH D. HILL, Petitioner,
Report & Recommendation; Denying the Habeas Corpus
Petition; Dismissing the Action With Prejudice;
VALERIE BAKER FAIRBANK SENIOR UNITED STATES DISTRICT JUDGE.
an action for a Writ of Habeas Corpus by a Person in State
Custody Pursuant to 28 U.S.C. section 2254. Pursuant to
authority conferred by Fed.R.Civ.P. 72(b)(1), title 28 U.S.C.
section 636(b)(1)(B), and C.D. Cal. Local Civil Rule 72-3.3,
the United States Magistrate Judge issued a Report and
Recommendation (“R&R”) on January 5, 2017.
See Case Management / Electronic Case Filing System
Document (“Doc”) Doc 15.
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 (Doc10), the relevant
decision(s) of the California state courts, the other
“lodged documents” submitted by the respondent
warden in paper form (listed in the Notices of Lodging, Docs
11 and 12), the Magistrate Judge's R&R (Doc 15), and
the applicable law. Petitioner did not file a traverse in
support of his petition, nor did he seek an extension of time
in which to do so.
has not filed written objections to the R&R within the
time allotted by our Local Civil Rule 72-3.4, which expired
several weeks ago. See Sudduth v. Soto, No.
LA CV 15-09038-VBF, 2016 WL 2016 WL 4035337, *1 (C.D. Cal.
July 12, 2016) (Fairbank, J.) (“This Court never rules
on an R&R without waiting for the objection deadline to
pass, and it will not rule on the R&R here until at least
one week after . . . [petitioner]'s objection deadline
elapses . . . .”). Nor has petitioner sought an
extension of the objection deadline. Accordingly, the Court
proceeds to the issues without waiting further.
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.,
Jette v. Colvin, No. 3:13-cv-00719-AC, 2016 WL 4717735,
*1 (D. Or. Sept. 7, 2016) (“Because no objections . . .
were timely filed, this Court is relieved of its obligation
to review the record de novo.”) (citing
Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009) (citing 28 U.S.C. section
636(b)(1)(C) and United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)) and United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc)); Rael v. Foulk, No. LA CV 14-02987
Doc. 47, 2015 WL 4111295, *1 (C.D. 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, Doc. 53, No. 15-56205 (9th
Cir. Feb. 18, 2016).
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 United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc)
(district judge must review a magistrate's findings and
recommendations de novo if objections are made, “but
not otherwise”)), cited by 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.”) (also citing Thomas v. Arn, 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 a magistrate's report.[.]”)); 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). Accord Kinetic Fuel Technology, Inc. v. Total
Fuel Solutions, LLC, 2016 WL 1389616, *1 (W.D.N.Y. Apr.
6, 2016) (“The Court is not required to review de novo
those portions of a report and recommendation to which
objections were not filed.”) (citing Mario v.
P&C Food Markets, Inc., 313 F.3d 758, 766
(2d Cir. 2002)).
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 (C.D. 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)).
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. Cf. Hawkins v.
Boyd, 2017 WL 27949, *1 (E.D.N.Y. Jan. 3, 2017)
(“This Court, however, will conduct de novo review if
it appears that the magistrate judge may have committed plain
error. No such error appears here. Accordingly, the Court
adopts the R&R . . . .”) (internally citing
Spence v. Sup't of Great Meadow Corr. Facility,
219 F.3d 162, 174 (2d Cir. 2000)).
Report and Recommendation [Doc # 15] is
ADOPTED without objection. Hill's petition for a
writ of habeas corpus [Doc # 1] is DENIED.
Court will contemporaneously rule on a certificate of
appealability. See Henderson v. United
States, 2015 WL 66509, *2 (D. Idaho Jan. 5, 2015)
(Winmill, C.J.) (“Habeas Rule 11(a)
that this Court ‘must issue or deny a certificate of
appealability (COA) when it enters a final order adverse to
the applicant'”) The COA ruling will be
made by separate order. See, e.g., Roybal v.
Davis, 148 F.Supp.2d 958, 1125 (S.D. Cal. 2015) (after
ruling on the merits and partially denying habeas petition,
court stated, “In the final order, entered
contemporaneously with the present order, the Court grants a
COA on Claims . . ., and denies a COA on [other
judgment will be entered consistent with this order.
“As required by Fed.R.Civ.P. 58(a), the Court will
enter judgment by separate document.”Toy
v. Soto, No. LA CV 14-06563-VBF Doc. 30, 2015 WL
2168744, *1 (CD. Cal. May 5, 2015) (citing Jayne v.
Sherman,706 F.3d 994, 1009 (9th ...