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Hill v. Warden

United States District Court, C.D. California, Western Division

February 23, 2017

KENNETH D. HILL, Petitioner,
v.
WARDEN, Respondent.

         Adopting Report & Recommendation; Denying the Habeas Corpus Petition; Dismissing the Action With Prejudice;

          ORDER

          HON. 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 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.

         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 (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.[1]

         Petitioner 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.[2] 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.

         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., 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).

         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 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)).

         “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 (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)).

         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. 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)).

         ORDER

         The Report and Recommendation [Doc # 15] is ADOPTED without objection. Hill's petition for a writ of habeas corpus [Doc # 1] is DENIED.

         The 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)

         states 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 claims].”).

         Final 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 ...


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