United States District Court, D. New Mexico
Martinez United States Attorney Paige Messec Assistant United
States Attorney Attorneys for the Plaintiff/Respondent.
Johannes “John” Jarvis Sheridan Federal Prison
Camp Defendant/Movant pro se.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on: (i) the
Defendant/Movant's Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody, filed November 4, 2016 (Doc.
1)(“Motion”); and (ii) Memorandum of Law and
Argument in Support of Motion to Vacate Set Aside or Correct
Sentence Pursuant to 18 U.S.C. 2255, filed November 4, 2016
(Doc. 2)(“Memorandum”), pro se, by
Defendant/Movant Johannes “John” Jarvis. On June
30, 2017, the Honorable Kirtan Khalsa, United States
Magistrate Judge, entered Proposed Findings and a Recommended
Disposition, filed June 30, 2017 (Doc.
11)(“PFRD”), regarding Jarvis' Motion. In her
PFRD, Magistrate Judge Khalsa recommended that the Court rule
that the Motion, exhibits, and record conclusively establish
that Jarvis is not entitled to the relief he seeks.
See PFRD at 11. Magistrate Judge Khalsa further
recommended that the Court dismiss with prejudice Jarvis'
Motion. See PFRD at 11.
parties had until on or about Monday, July 17, 2017, to
timely object to the PFRD. See PFRD at 12. As of the
date of entry of this Order, no objections have been filed.
Upon review of the record, the Court concludes that
Magistrate Judge Khalsa's PFRD is not clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of
discretion. The Court accordingly adopts the PFRD.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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 parties'
consent, to hear a pretrial matter dispositive of a claim or
defense . . . .”). Result 72(b)(2) of the Federal Rules
of Civil Procedure governs objections to recommendations from
a Magistrate Judge and provides: “Within 10 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.” Under the rule,
when resolving objections, “the 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.”
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
the 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 Property, With
Building, Appurtenances, Improvements, and
Contents, 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 advanced the interests that underlie the
Magistrate's Act [28 U.S.C. §§ 631-639],
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
Tenth Circuit held in One Parcel “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 at
1059 (citations omitted).
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.
One Parcel, the Tenth Circuit, in accord with other
United States 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 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 sore or review the strict court
should perform when no party objects to the magistrate's
report. See S. Rep. No. 94-625, pp. 9-10
(1976)(hereafter Senate Report); H.R. Rep. No. 94-1609, p. 11
(1976); U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter 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
judge's report than the court considers appropriate.
Moreover, the Subcommittee that drafted and held hearing 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.” See Jurisdiction of the
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)(hereafter Senate Hearings). The
Committee also heard Judge Metzner of the Southern District
of New York, the chairman of the 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 ...